
GopyrightE^, 



COPYRIGHT DEPOSm 



FORM AND FUNCTIONS OF 
AMERICAN GOVERNMENT 




Independence Hall, Philadelphia, where the Declaration of Independence 
was signed by the members of the second Continental Congress and where 
the Constitution of the United States was drawn up by the Constitutional 
Convention of 1787, 



FORM AND FUNCTIONS OF 
AMERICAN GOVERNMENT 



BY 



Thomas Harrison Reed, A.B., LL.B. 

n 

ASSOCIATE PROFESSOR OF GOVERNMENT 
UNIVERSITY OF CALIFORNIA 



Illustrated 




YONKERS-ON-HUDSON, NEW YORK 

WORLD BOOK COMPANY 

1916 



Edited by David P. Barrows and Thomas H. Reed 



GOVERNMENT & POLITICS 
OF THE GERMAN EMPIRE 

J^y Fritz-Konrad Kruger 

Doktor der Staatswissenschaften {Tiibingen), M.A. {Nebraska) 

This book is the result of years of careful study, and in its 
preparation a mass of German first- and second-hand sources 
has been used, which has not been used heretofore by Ger- 
man or English writers. Furthermore, many chapters cover 
questions not systematically treated in any previous book 
written in English ; e.g., population and territory in their 
relation to German politics, the nature of the Empire, party 
principles, the chancellors, etc. In short, this is the first 
systematic monograph in English deaUng with the politics of 
Germany. There is a critical bibliography, covering thirty- 
three pages, at the end of the book ; two colored charts and 
eight colored halftones. 

Cloth, xii-\-j40 pages. Price $i.oo. Mailing price, $1.20. 



The Government Handbooks are planned for the double pur- 
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authoritative texts and of furnishing the pubHc with convenient 
volumes for reading and reference. The plan is to cover the 
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WORLD BOOK COMPANY 

YONKERS-ON-HUDSON, NEW YORK 



Copyright, iqib, by World Book Compauy. Copyright, iqib, in Great Britain. 
All rights reserMd. Af^^—i. 

©C(^446G39 



NOV 29 1916 



y 



TO 
MY FATHER AND MOTHER 



PREFACE 

This book is the result of nine years' experience in 
teaching government and a lifelong interest in politics. 
It is intended primarily for that great majority of high- 
school pupils who go no farther on the road of formal edu- 
cation and aims to deal with the principles of governmental 
organization and activity in such a way as to be a suitable 
basis for the most thorough high-school course in prepara- 
tion for citizenship. It leaves the author's hands with the 
cherished hope that it may help to make better citizens 
and better government. 

In the long period during which this book has been in 
preparation I have received assistance from a multitude of 
friends and students. I am under special obligation to 
my colleague, Professor David P. Barrows, of the Uni- 
versity of California, who has encouraged and advised me 
at every stage of the work. I am also deeply indebted 
for helpful criticisms of the manuscript to Professor Paul 
Monroe, of Teachers College, Columbia University ; Pro- 
fessor Edward Alsworth Ross, of the University of Wis- 
consin ; Mr. Arthur W. Dunn, Superintendent of Schools, 
Indianapolis ; and Mr. H. W. Martin, of the Horace Mann 
School, Teachers College, New York City. President 
Tyler, of the College of William and Mary, and Professor 

E. I. McCormac, of the University of California, have 
made invaluable suggestions with regard to certain of the 
historical portions of the work ; Professor John W. Ritchie, 
author of the New-World Health Series, and Dr. William 

F. Snow, General Secretary of the American Social Hy- 
giene Association, have given advice concerning matters 
dealt with in the chapter on " The Preservation of Public 

vii 



viii PREFACE 

Health " ; Mr. Frank A. Vanderlip, President of the 
National City Bank, New York City, has most kindly 
revised the chapter on " Money and Banking"; and Sul- 
livan and Cromwell, Attorneys, have given a critical read- 
ing to the chapter on " The Regulation of Corporations." 
For cordial help in the way of supplying maps I am 
especially indebted to the Forest Service of the United 
States Department of Agriculture, the Reclamation Service 
of the Department of the Interior, and the Board of Water 
Supply of the City of New York. 

These acknowledgments would be incomplete without 
reference to two of my students, Mr. J. R. Douglas and 
Mr. C. E. Martin : the former for much assistance ren- 
dered in the early stages of my task, the latter for reading 
the proof. This list of acknowledgments is not intended 
to shift the responsibility for the shortcomings of the 
ensuing pages. The mistakes are all mine. 

THOMAS HARRISON REED 



CONTENTS 



INTRODUCTORY 

PAGE 

Government, and Why We Study It .... 1 



PART I — THE BACKGROUND OF AMERICAN 
GOVERNMENT 

CHAPTER 

I. English and Colonial Origins .... 11 

II. The Early State Constitutions .... 24 

III. Formation of the Union 35 

IV. The American Federal System .... 45 

PART II — PARTIES AND ELECTIONS 

V. The Place of Political Parties in Modern Gov- 
ernment 61 

VI. The History of Political Parties in the United 

States 67 

VII. Nomination and Election Machinery ... 78 

VIII. Party Organizations and Activities ... 89 

PART III — STATE GOVERNMENT 

IX. The Democratic Evolution of State Constitu- 
tions 101 

X. The Governor . . . . . . . .112 

!XI The Legislature 122 

XII. The Process of Lawmaking 133 

XIII. The State Judicial System 152 

XIV. The Organization of State Administration . 170 

ix 



CONTENTS 



PART IV — LOCAL GOVERNMENT 



CHAPTER 

XV. 

XVI. 

XVII. 

XVIII. 



PAGB 

179 



The Development of City Government 

Present Forms of Municipal Government . 191 

Rural Local Government in England and 

THE Colonies . . ' . . . . 203 
Country, Town, and Township Government 210 



PART V — GOVERNMENT OF THE UNITED 
STATES 

XIX. The Choice of a President 

XX. The Powers of the President 

XXI. The Congress of the United States 

XXII. The Making of a Federal Law 

XXIII. The United States Courts 

XXIV. The Executive Department 
XXV. The Civil Service of the United States 

XXVI. Territories and Dependencies 



227 
242 
255 
269 
279 
287 
300 
307 



PART VI — THE FUNCTIONS OF GOVERN- 
MENT 

XXVII. Foreign Relations and National Defense . 321 

XXVIII. Crime and Its Prevention .... 330 

XXIX. Public Morals and Recreation . . . 340 

XXX. Care of Dependents 352 

XXXI. Education 359 

XXXII. The Preservation of Public Health . . 370 

XXXIII. The Conservation of Natural Resources . 381 

XXXIV. Money and Banking 391 

XXXV. The Regulation of Corporations . . . 408 
XXXVI. The Control and Ownership of Public 

Utilities 420 



CONTENTS 



XI 



CHAPTER PACK 

XXXVII. Government and Labor . . , . . 432 

XXXVIII. Immigration . 445 

XXXIX. Municipal Functions 455 

XL. Revenue and Taxation 468 

XLI. Government Finance 483 

APPENDICES 

A. Articles of Confederation . . . 501 

B. Constitution of the United States . 511 

INDEX 535 



LIST OF ILLUSTRATIONS FROM 
PHOTOGRAPHS 



Frontispiece 

OPPOSITE PAGE 
14 



Independence Hall, Philadelphia 

The old House of Commons .... 
The dome of the national Capitol at Washington 
The governor's room at Albany, New York 
The state assembly chamber, St. Paul, Minnesota 
The state senate chamber, Columbus, Ohio 
Summary disposition of cases in a police or magistrate's 
court ....... 

A case being tried in a superior or trial court 

The Republican national convention of 1908 

The President's Cabinet in 191 6 

The national Senate chamber at Washington 

President Wilson reading his message before Congress in 

the Hall of Representatives 
The Supreme Court of the United States 
The White House 
The Congressional Library 
The Smithsonian Institution 
West Point cadets at dress parade 
Midshipmen at the naval academy 
Judge Ben. B. Lindsey in his juvenile court 
Miss Mary Bartelme in the Chicago juvenile court 
An outdoor gymnasium for men and boys . 
Women and girls in a public bath 
An outdoor class of tuberculous children . 
Patients in a city hospital cared for on outdoor sleeping 

porches .... 



46 
116 
126 
126 

154 
154 
232 

244 
264 

264 
282 
298 
298 
298 
326 
326 
336 
336 
348 
348 
354 

354 



xiv LIST OF ILLUSTRATIONS 



An old-fashioned district school .... 

A great high school in New York City 

Milking time in a sanitary dairy .... 

Making butter in a sanitary dairy .... 

The Roosevelt Dam, Salt River irrigation project 

Scene below an irrigation reservoir .... 

A deforested slope ....... 

A forest which has been cut over and burned 

Damage done by a flood ...... 

The National Park Bank in New York City 

The Clearing-house, New York City .... 

The hospital room in the National Cash Register Com 
pany's plant ....... 

A group of women employees in a model factory 

Judging the mentality of an immigrant boy at Ellis Island 

The main waiting room at Ellis Island 

The Owens River aqueduct, which supplies water to Los 
Angeles ........ 

The Croton dam, which holds back the water supply of 
New York City 



OPPOSITE PAGE 
362 

362 

382 
382 
388 
388 
388 

438 
438 

452 

452 
460 
460 



MAPS, DIAGRAMS, AND FACSIMILES 



Section of Massachusetts ballot 

Section of a party-column ballot 

Title and opening lines of a legislative bill 

Ending of a legislative bill .... 

A summons . 

A subpoena ....... 

Distribution of powers under commission government 
Mayor plan of city government .... 

City manager plan of government 



PAGE 

83 
84 
142 
144 
162 
165 
192 
196 
198 



LIST OF ILLUSTRATIONS 



XV 



The sections of a congressional township . 
Map showing the intersection of a base line 
with a principal meridian 

The President's engagements for a day 

Last paragraphs and signatures of the Hay 
Pauncefote Treaty .... 

An act of Congress after it has received the ap- 
proval of the President 

A passport 

The insular possessions of the United States 
A diagram of health statistics 

Diagram of death rates from four common dis 
eases ....... 





PAGE 


facing 


220 


11 


220 


11 


250 



Principal irrigation projects in the western part 

of the United States ...... 

Map showing extent of national forests . . facing 

A bank check . . . . . . . 

A certificate of incorporation ..... 

Balance sheet of San Francisco municipal street 

railway ........ 

Map showing distribution of inhabitants of for- 
eign descent facing 446 

The New York water-supply system . . . " 455 

Street plan of Philadelphia 457 

Street plan of Washington, D.C. ..... 458 



256 

276 
288 
312 
372 

375 

385 

402 
409 

428 



INTRODUCTORY 



INTRODUCTORY 
GOVERNMENT, AND WHY WE STUDY IT 

It is natural for intelligent students to inquire at the Government 
beginning of each new subject, "Why do we study this 
particular thing?" It is only fair to answer their query 
fully and frankly. 

It is the habit of certain wiseacres to minimize the The potency 
potency of government. Such phrases as "You cannot ^g^^®"^' 
make men good, prosperous, or happy by law" are fre- 
quently upon their lips. There are so many other factors 
which must concur to make men good, prosperous, or 
happy, that this statement is a dangerous half truth. Its 
natural tendency is to discourage effort to better govern- 
ment. Why should any one waste time on some inept 
mechanism which can never accomplish the result de- 
sired? It is not true, however, that government has no 
effect upon the goodness, prosperity, or happiness of men. 
This is perhaps most clearly shown by the fact that there 
are numerous and moving examples of men and even 
nations being made bad, poor, and wretched by the action 
of the government. The formerly unhappy condition of 
the Irish peasantry in a land endowed by nature with every 
advantage ; the Mafia and Camorra societies in Southern 
Italy ; the backward civilization of Cuba after centuries 
of Spanish rule, are all examples of the harm which bad 
government can do. We have no right to excuse our 
ignorance of government on the ground that it is unim- 
portant. It is as full of good and evil as Pandora's box. 

The earliest task of government, and to this day its 
most fundamentally important function, is that of na- 



2 INTRODUCTORY 

Govern- tional defense against foreign aggression. Closely allied 
™liceman ^^ ^^^^ ^^^^ ^^ protecting the state from external foes is 
that of preserving internal order. The poHceman, the 
judge, the jury, the jail, reformatory, and prison are the 
common agencies through which this work is performed. 
You may, if you will, regard government as a gigantic 
policeman, with more arms than Briareus, calming the 
strifes of a numerous population. We seldom stop to 
think when we he down at night in the quiet of comfortable 
homes that the harmony at home and peace abroad which 
make that security possible are alike the work of govern- 
ment. Otherwise everything which we hold dear would 
be at the mercy of our strongest neighbor, while the un- 
preparedness of our government to defend its people 
would serve as a constant temptation to the aggression 
of other states. The work of the government as police- 
man and soldier is performed so regularly that it has 
become a matter of course with most of us. It is only 
when this valuable protection is withdrawn that we begin 
to appreciate its importance. Another of the duties of 
government which belongs in the same class with that of 
preserving order, being indeed one of the chief means to 
that end, is the administration of justice between indi- 
viduals. Were it not for the orderly method of settling 
disputes provided by the courts, each individual would 
have to protect his own interests and the race would be 
to the swift and the battle to the strong. 
Paternalism For a long time these were almost the only functions 
of government. With the progress of civilization it be- 
came necessary to pass laws for the relief of the poor, the 
regulation of wages, and the control of domestic and 
foreign trade. When a government seeks in many ways 
to regulate the life and conduct of its people, we speak 
of it as a '^paternal" government, because its relation to 



GOVERNMENT, AND WHY WE STUDY IT 3 

the people is similar to that of a father to his children. 
Emerging from the confusion of the early Middle Ages, 
governments grew steadily more paternaHstic. They 
prescribed what men should wear, what they should eat, 
what they should pay for their bread and meat. The 
restrictions on commerce and on the right of the people 
to move about from place to place in search of employ- 
ment were particularly severe. The whole scheme of 
governmental paternalism became, about the middle of 
the eighteenth century, well-nigh intolerable. 

The inventions of Watt, whose fundamental patent Laissezfaire 
dated from 1769, made the steam engine practical. By 
the end of the century the application of power to spin- 
ning and weaving machinery had brought on an economic 
revolution. Vast social and industrial changes resulted, 
and the old restrictions proved vexatious and harmful. 
There naturally arose in England a school of writers 
among whom Adam Smith, Ricardo, and Senior were the 
most prominent, who advocated with considerable success 
the aboHtion of all restrictions on trade and labor. They 
wanted government to be a policeman and soldier, and 
nothing more. This policy is known as the laissez faire 
policy, the two French words signifying ''let alone." 
Their theories were, at least partially, adopted by the 
English government, while in America the very circum- 
stances of the struggle against the wilderness left men 
free to do as they pleased industrially. 

It was not long, however, before the impossibility of a Breaking 
laissez faire poHcy with regard to trade and industry be- i^°7sez°faire 
came evident. For example, the advent of machinery 
made it possible for children to be employed in large num- 
bers to guide the speeding wheels and spindles. They 
were occupied for periods of from twelve to fourteen hours 
a day under conditions the most frightful imaginable. 



4 INTRODUCTORY 

They were helpless to protect themselves, and their 
parents, who frequently had been thrown out of employ- 
ment by these very machines, were too dependent on the 
earnings of the children to resist the temptation to set 
them to work. Crime was increasing. The race was 
positively degenerating under the conditions that pre- 
vailed. The necessity for the passage of acts limiting 
the hours of labor of women and children, regulating the 
sanitary conditions of factories, and otherwise securing 
for them the protection they could not get for themselves 
became irresistible. The first child-labor law in England 
was passed in 1802,^ the first law Hmiting the hours of 
women to ten per day in 1847. American legislation 
was adopted even later because of our less rapid industrial 
development. As the present era of industriahsm has 
advanced, it has become more and more the part of gov- 
ernment to protect the helpless weak against the strong. 
We have never, however, returned to the vexatious 
regulations of the food and clothing of the people which 
prevailed in former times. Our modern paternaUsm is 
more rational and beneficent. 
Simple con- There was a time when the Hfe of the American people 

ditionsof ^^^ ^ ^gj.y simple thing indeed. The country was pre- 
early Amer- ■' ^, ,11 *• tj 

ican life ponderantly agricultural and the average American hved 

on a farm or in a small village. If he wanted water, he 
drew it from the family well. If he wanted milk, his 
resort was to the family cow. The eggs which we buy at 
five cents apiece were provided in profusion by the family 
hens. Many other articles of food were raised on the 
place. Fresh meat was procured from the animals 
slaughtered in turn by the neighboring farmers. Medi- 
cines were found largely in the herb garden. If a journey 

1 Applied only to pauper children. Protection from parental exploita- 
tion came even later. 



GOVERNMENT, AND WHY WE STUDY IT 5 

were in contemplation, it was only necessary to hitch the 
faithful farm horses to the rusty old wagon and go. Every 
family was mutually independent, or at the very most 
was dependent only on a narrow circle of other families 
with whose character and conduct it was already thor- 
oughly familiar. 

If at the present day the average American wants water, Complex 
he turns a wall tap above the sink and gets water, it is conditions 

^ ... of modern 

true, but whether pure or reeking with disease, he cannot life make 

know. He is dependent on a distant water supply and "^dividual 

, 1 1 r- iieipiess 

the strange men in charge of it. When he finds on his 

back steps a bottle of what purports to be milk, he knows 
nothing of the contents beyond the representations of 
those who supply it. Every article of food which he uses, 
every piece of clothing he wears, are made for him by 
persons over whose cleanliness or honesty he has no pos- 
sible means of personal control. Even in taking a journey, 
unless he is so fortunate as to own an automobile, he is 
hurtled toward his destination in a conveyance utterly 
beyond his control either as to the conditions of the serv- 
ice or the rate at which it is rendered. Instead of being 
individually independent, we have become mutually 
dependent. The complexity of industry has been carried 
so far that no one except the farmer ever completes all 
by himself a usable commodity, and even the farmer is 
becoming year by year more of a specialist. Many fruit 
growers, for example, are as dependent on their store pur- 
chases as the clerk or the manufacturer. 

Now when it comes to a matter of protecting the indi- The func- 
vidual against fraud or bad service, since he is as an indi- ^^JJig^jj 
vidual so insignificant as to be helpless, there is no hope government 
except in the activities of government. We therefore 
have today an increasing number of functions which the 
government undertakes for the benefit of the people. 



6 INTRODUCTORY 

Education is undoubtedly the most important single task 
which government has assumed. More than one fifth 
of all the revenues of our states and cities are used for 
education. The study of the causes of disease, the in- 
spection of foodstuffs, the enforcement of sanitary laws, 
the distribution of information, the establishment of 
quarantines, are among the new functions of govern- 
ment. The care of the poor, the insane, the unruly boys 
and girls, the men who have but once gone wrong, and 
finally of the genuine criminals, are duties which the 
modern government undertakes. The building of roads 
and bridges, the cleaning of streets, the construction of 
drains and sewers, the removal of refuse, the supply of 
water, are services which government renders for the 
protection and improvement of the people. The owner- 
ship and operation or the regulation of public utilities, 
such as the supply of gas, electric light and power, 
water, telephone and telegraph communication, and trans- 
portation, are obligations more or less clearly accepted 
by governments today. Indeed, not only is government 
necessary to the preservation of public peace and order, 
but it is necessary to the ordinary business of living, as 
we must live in modern society. 
Why we This is the great reason why every American youth 

should study should study government. There is no other material 
government ... 

force which will influence your lives and the lives of your 

associates to so great an extent as government. Many 

of the primary conditions of life are secured for you by 

the government and can be secured for you in no other 

way. You are about to begin the study, not of a cold 

abstraction, but of a living thing, pulsing with the life 

blood of the milhons of our nation. It means happiness 

or unhappiness, prosperity or misery, good or evil, to 

them. Which they will receive, is your responsibility. 



GOVERNMENT, AND WHY WE STUDY IT 7 

You are to be participants in the work of government, 
and the work must not go wrong through your ignorance 
or neglect. 

SUGGESTIONS FOR FURTHER STUDY 

This chapter is intended merely for the purpose of creating interest 
in the work which is to follow. It is suggested that the teacher 
amplify the outline of the functions of government contained in 
the text. Special emphasis should be laid on recent social activities 
of your own state or city governments. A class discussion on the 
duties of citizenship will be very much in order. 

On paternalism and laissez faire, see Cunningham, W., Outlines of 
English Industrial History, pp. 89-109, where a brief account is given 
of the industrial conditions of the seventeenth and eighteenth cen- 
turies. Leacock, Stephen, Elements of Political Science, pp. 357- 
410, discusses the matter very intelligently. 

Among the best books on the obligations of citizenship are : Root, 
Elihu, The Citizen's Part in Government; Bryce, James, The Hin- 
drances to Good Citizenship; Godkin, E. L., The Duty of Educated 
Men in a Democracy. 



PART I 

THE BACKGROUND OF AMERICAN 
GOVERNMENT 



CHAPTER I 
ENGLISH AND COLONIAL ORIGINS 

We must never make the mistake of supposing govern- Evolution- 
ment to be a fixed and stationary object capable of de- ^^ ^^*J" 
scription once and for all. As a matter of fact, it is the government 
subject of an evolution much more rapid than that of the 
physical world. We cannot get a very clear idea of it 
as it exists at this moment unless we understand some- 
thing of its origin and growth. If for no other purpose 
than to emphasize the changing character of institutions 
and to prevent blind worship of things as they are, it is 
worth while to trace its evolution. 

It is easy to find the source of our present system of The Ameri- 
government in that of England and her "Thirteen Col- can people 
onies." The settlers of the English colonies in North 
America were almost wholly English. The Dutch in 
the single province of New York, and the French Hugue- 
nots scattered along the seacoast, earned a prominence 
in our early history entirely out of proportion to their 
numbers. The Germans, who were more numerous in 
Pennsylvania than elsewhere, were a mere drop in the 
bucket compared to the Enghsh population of the Quaker 
colony. The Scotch and Irish, mostly Protestants from 
the north of Ireland, were, in advance of their coming, 
thoroughly Anghcized. For a period of nearly three 
quarters of a century after the establishment of the last 
colony, but comparatively few immigrants came to this 
country. At the same time the population increased with 
enormous rapidity while the almost uniform conditions of 
frontier life worked steadily to destroy preexisting dif- 

II 



12 THE BACKGROUND OF AMERICAN GOVERNMENT 



Continuous 
develop- 
ment from 
English 
originals 



ferences of race or training. During the formative perioV 
of American institutions, therefore, the United States had', 
if not an exclusively English population, at least a popu- 
lation impregnated exclusively with English political 
ideas. This assured the continuance of English tradi- 
tions of government. 

The political institutions of seventeenth-century Eng- 
land were brought to America by the early settlers. They* 
were only modified by a century and a half of colonial 
experience. When, in 1775, the break with England 
came, there was, as we shall see, no revolution in thf^' 
form of government at that time existing in the colonies 
Among the more important changes were a broadening 
of the suffrage, an increase in the power of the legislature, 
and some provision for the election of a governor to re- 
place the evicted representative of the crown. Indeed, two 
of the states, Connecticut and Rhode Island, whose colo- 
nial charters had provided for elective governors, kept on 
with these charters until well into the nineteenth century. 
The state governments of today are the legitimate suc- 
cessors by a very easily traced process of development of 
the state governments of 1776-80. The systems of local 
government which we at present find in the various parts 
of the United States are the direct descendants of the 
local governments of colonial days. The national govern- 
ment itself is only an appUcation to a larger field of the 
experience of its framers with the old colonial govern- 
ment and new state governments. This should be enough 
to explain why you are asked at this point to give atten- 
tion to certain matters which may appear at first sight to 
be rather remote in point of time from the government 
of the United States. 

The earliest colonial charters were simply charters 
granted to bodies of Englishmen to trade and make 



r^ ENGLISH AND COLONIAL ORIGINS 13 

;,ttlements in certain ill-defined portions of the New Trading- 
vVorld. They were in all essentials similar to those of ghSters^ 
the East India Company and the Hudson Bay Company, 
which long continued to be operated as trading companies. 
They provided in general for a "governor" and "coun- 
cil," or board of "assistants," all resident in England. 
These authorities made such arrangements as they pleased 
for the government of the settlements they planted, sub- 
ject to provisions of the charter which secured to every 
colonist the rights of an Englishman. The first settle- 
r^ents made by the Virginia Company were governed in 
a .military manner. In 1619, however, an assembly or 
4ouse of Burgesses, elected by the several "places 
and plantations," was established to assist a resident 
governor and council in the management of the colony. 

When, in 1624, the charter of the Virginia Company The crown 
was revoked, the same form of government was perpetu- *^*'^**°*®^ 
ated in the colony now under the immediate control of 
the king. Virginia was the earliest of the "crown col- 
onies," to which class also belonged New Hampshire, 
New York, New Jersey, North and South Carolina, and 
Georgia. In all of these colonies the form of government 
was prescribed in the commission of the governor sent 
out from England to represent the king's authority. 
They were practically alike, and one description can be 
made to serve for all. 

The governor was appointed by the king and was the The 
chief executive officer of the colony. He was assisted sovernor 
and advised in almost all matters by a council, also ap- 
pointed by royal authority, so that the executive depart- 
ment really consisted of a governor and a board of advisers. 
They together appointed most of the colonial officers, in- 
cluding the judges, exercised the power of pardoning 
persons convicted of crime, and performed many other 



Indiio 



14 77//': liAi hCKOI'ND Ol' AMKKllAN COVKKNMKNT 

liiiit lions. TIh' governor liad llic power of siimmoniiig 
I lie l('}j;islaliv(' body and of proroguing' aiul dissolving il. 
I Ic ;il;.n had I lie powci' of li'fusing assi'iil lo (lie laws passed 
l>y I lie (olonial ic•|^M^,lal uic, I lie power of veto. In 
short, (lie governor was a (;o|)y of I In' king reduced in 
dignily and snl)je( 1 lo llic approval of a, <()nii(il in niosl 
of his at lionii. 
The IpglM- The council not only advised I he govcrnoi in I he ex- 

cK i;.f <>l his executive fuiu lions, hul ailed in Virginia as 
a hiidi jndi( iai (onri and in I he other roval colonies as 
the supreme (onrl. Il was besides, in all these colonies, 
the upper of the two houses of the legislature, corre- 
sponding in this respect lo the House of Lords. The lower 
house of liie legislature, corresponding to the lOnglish 
ll(»n:;e of Coninions, was known as the "assembly," and 
was el('( led l)\' ihor.c of I he peo|»le who owned an amount 
of property varying in the dillerent colonies, but suf- 
Tk ienll\' large lo <le|)rive a. great |)roportion of the p()|)ula- 
tion of the privilege of participating in politics.* This 
house elected its own ofl'icers and was the judge of the 
(|ualilicalions of its own member^;, lis lerni of ollice was 
n»>l very delniiu. The governor exercLsed rather ar- 
bitrarily his |)ower of summoning, j)roroguing, and dis- 
solving so much so, indeed, that the colonists com- 
plainetl bitterly of il and made il one of the items of 
tyraimy recited in the Declaration of Independence. 
Laws weit" made by the (oncurreni action of the two 
houses of the legislature and the governor. 

Laws repugnant to those of luigland were void, and 
all laws rtM|uired the approval of the king as well a.s the 



'I'uivcrsal siilTrax*' urevailt-il in ViiKiiiiii milil 1(171, whtii llu- lifi- 
liolil (iMiililii iilioii was prcsi rilu'd, ICscii alter Ihal ni\u>, siiuf tlif irtTlit»lil 
was not th'Inu'd, all froonu'ii iimliiuu-d lo nijoy the riglil to volt* until 




1 



a 

o 
l-l 



.a 

ft 

C4 



I 






a 
a 

o 



o 



ENGLISH AND COLONIAL ORIGINS 15 

governor. The ordinary statutes went into effect as Laws repug- 
soon as the governor had affixed his signature, but the P^^* *° 
more important laws, especially those which might pro- England 
duce an immediate and irremediable effect, had to contain 
a clause suspending their operation until the king's pleas- 
ure might be known. As the king was by no means 
prompt in his treatment of these measures, this again 
grew into a grievance of the colonies against the crown. 
Further, an appeal lay from the highest court of each 
colony to the " king in council," which really meant cer- 
tain members of the privy council, who were at the same 
time the more important judges of the English courts. 
Thus the colonies early became accustomed to having 
their statutes and their judicial decisions annulled by 
a superior authority. 

A second class of colonies, Pennsylvania, Delaware, Proprietary 
and Maryland, were known as ''proprietary colonies," <^°^<*^®^ 
from the fact that their territories and the right to ex- 
ercise within them the powers of government had been 
granted to individuals who stood in the same relation to 
them as did the king to the crown colonies. There was 
little difference between the form of government of Mary- 
land and that of the crown colonies, Pennsylvania and 
Delaware, which were governed under the same "Charter 
of Privileges" granted by William Penn and had but 
one governor between them. The council in these colo- 
nies did not act as an upper house of the legislature, 
but only as a check upon the executive power of the 
governor. This was a marked divergence from the 
English practice of two legislative houses, which has been 
almost universally followed in English-speaking countries. 
The right of appeal from the decisions of the courts of 
the proprietary colonies to the privy council was the same 
as in the crown colonies. 



i6 THE BACKGROUND OF AMERICAN GOVERNMENT 



The charter 
colonies 



Massachu- 
setts 



Rhode Island and Connecticut were called the "charter 
colonies," because in them the powers of government 
were conferred directly on the "freemen" of the colony 
by royal charter. The term "freemen" did not include 
every free man, but meant, during most of the colonial 
period, those persons who owned property of a certain 
value. The freemen chose annually two members of 
assembly from each town. These, with the governor, 
deputy governor, and twelve assistants, constituted the 
"general court" of the colony, which chose the governor, 
deputy governor, and assistants for the ensuing year. 
The governor presided over the council, of which he and 
the twelve assistants were members and which as a body 
exercised the executive power. The governor had no 
veto and there was no provision for the submission of the 
laws of the colony to the king for his consent. The 
council was the upper house of the legislature, the as- 
sembly, the lower. The latter was by far the more in- 
fluential. Very liberal powers were given by the charter 
to the general court, including the right to create and 
fill the necessary judicial and executive ofiices. Nothing 
was said in the charters about the right of appeal from 
the supreme court of the colony to the privy council, 
but as a matter of fact cases were appealed. 

The remaining colony, Massachusetts, was in a class 
midway between the royal and charter colonies. Its 
original charter was a trading-company charter not dis- 
similar from that of Virginia, except that there was no 
specification of the place at which meetings of the company 
were to be held. A majority of the freemen, or members 
of the corporation, emigrating to America, brought the 
charter with them and used it as an instrument of gov- 
ernment in the colony. The freemen, who were at first 
liberally admitted, met in mass meeting, but this soon 



ENGLISH AND COLONIAL ORIGINS 



17 



proved inconvenient and after trying a system of proxy 
voting they came to be represented by deputies. These 
deputies sat at first with the assistants as one body, but 
later, just why or when we do not rightly know, they 
separated into two distinct houses. The government 
thus organized was practically independent of England, 
a result to which the troublous times of the Stuarts largely 
contributed. The most important of its acts for our 
present purposes was the "Body of Liberties," in which, 
in the midst of a great deal that was harsh and cruel, 
the rights of the individual were defined in language 
prophetic of the Bills of Rights of later constitutions. 
In 1684, however, the charter was revoked by the 
king's judges, and after seven years of charterless 
existence a new and less liberal charter was granted. 
The principal difference between it and the royal charters 
was that in Massachusetts the council was elected by 
the assembly and the colony possessed a supreme court 
apart from the council. Its situation with regard to the 
mother country was the same as that of the royal colonies.^ 
In all of the colonies there was constant friction between 
the assembly elected in the colony and the governor and 



1 General Scheme of Colonial Government 



Colony 


Executive 


Legislative 


Judiciary 


Crown Colonies 








Georgia 


Governor and 


The council as 


Inferior judges 


New Hampshire 


council appointed 


upper house and 


appointed by the 


New Jersey 


by the crown 


a lower house 


governor and 


New York 




elected by the 


council. Council 


North Carolina 




property owners 


court of highest 


South Carolina 






appeal, except for 


Virginia 






a time in Virginia, 
when it was the 
council and House 
of Burgesses 



{Continued on page 18) 



iS THE BACKGROUND OF AMERICAN GOVERNMENT 



Popular 
assembly vs. 
royal 
governors 



Gouncil appointed by royal authority. The governors 
brought with them from home instructions which fre- 
quently did not conform to the interests or ideas of the 
colonists. It seems very clearly proved by modern 
historical investigation that the colonists were by no 
means uniformly liberal and patriotic in the assumption 
of burdens even for their own defense against the French 
and Indians. They doubtless did much to harass and 
annoy the representatives of the king. At the same time 
the officers sent out from England were frequently men 
of little tact and discretion, with the result that they 
needlessly wounded the susceptibilities of the Americans. 



General Scheme of Colonial Government 


(Continued) 


Colony 


Executive 


Legislative 


Judiciary 


Proprietary 








Colonies 








Delaware 


Governor and 


An assembly 


As in crown col- 


Pennsylvania 


council appointed 


elected by the 


onies, except that 




by the proprie- 


property owners 


there was a sepa- 




tary 




rate supreme 
court appointed 
by the governor 


Maryland 




The council and 


As in crown col- 






an assembly 


onies 






elected by the 








property owners 




Charter Colonies 








Connecticut 


Governor and 


General court, 


A separate su- 


Rhode Island 


assistants elected 


consisting of as- 


preme court 




by the general 


sistants and an 






court 


assembly elected 
by property own- 
ers and freemen 




Massachusetts 


Governor ap- 


The council and 


A separate su- 




pointed by the 


an assembly 


preme court 




crown and a coun- 


elected by prop- 






cil elected by the 


erty owners 






assembly 







ENGLISH AND COLONIAL ORIGINS 19 

A real divergence of interests was soon developed, and 
as the time drew near when the colonies, grown too large 
and independent for tutelage, would demand the right 
to govern themselves, the mother country prepared to 
exercise more vigorously her parental authority. What- 
ever the merits of the disagreement, it centered about 
the relations of the popularly elected branch of the legis- 
lature and the governor and his council.^ One result of 
the long controversy was that the people came to regard 
the assembly as their natural friend and the governor as 
their enemy. In other words, the legislature became 
popular and the executive unpopular. This had a marked 
effect upon the later distribution of power between the 
executive and the legislature. Another consequence of 
the struggle was that the speaker of the assembly, as its 
leader and as the highest officer owing his power to the 
popular will, became the most influential political leader 
in the government. This, too, we shall see has had im- 
portant after-effects upon our institutions. 

It is impossible to get a clear conception of the nature Colonial 
of colonial government without a study of the electoral suffrage 
franchise. In every colony the franchise was limited to 
property owners, and in most cases to land owners. 
Catholics were disfranchised in all of the colonies ; Quakers 
in all the colonies north of Virginia, except Pennsylvania 
and Rhode Island; Jews specifically in New York and 
probably, by implication, in all the rest. In Massa- 
chusetts one had to be a Christian of ''orthodox behef." 
Of course these restrictions were not as harsh as might 
at first sight appear. It was easy to acquire ownership 
of land in a country where land was plentiful and cheap. 

1 The same difficulty has been experienced by England in the control of 
her English-speaking colonies and by our own Government in the Philip- 
pines and Porto Rico. (See Chapter XXVI.) 



20 THE BACKGROUND OF AMERICAN GOVERNMENT 

There were few Catholics, few Quakers, except in Pennsyl- 
vania, and even in New York City, where they now con- 
stitute one fourth of the population, only a few Jews.^ 
The proportion of voters to the total population was 
larger than in England, but much smaller than in this 
country today. In Pennsylvania, for example, where 
the qualification was the ownership of fifty acres of land, 
ten of which had been cleared, or of fifty pounds' worth 
of personal property, one person in ten could vote in the 
country districts and only one in fifty in Philadelphia. 
Something like nine per cent of the population was 
qualified to vote in Rhode Island, and sixteen per cent in 
Massachusetts and Connecticut. Furthermore, only a 
small number of those entitled to vote actually did so, 
the disproportion being most striking in the colonies 
just named, where frequently only one person in fifty 
voted.^ 
English law One of our most important inheritances from England 
was the English common law. The Anglo-Saxons, like 

1 Property Qualifications in the Colonies 

Connecticut: 40 shillings freehold, or, after 1715, £4 personalty. 

Delaware: 50 acres freehold, of which 12 must be improved, or 

£40 personalty. 

Georgia : 50 acres freehold. 

Maryland : 50 acres or £40 personalty within the coimty. 

Massachusetts : 40 acres freehold or £50 personalty. 

New Hampshire : 40 acres freehold or £50 personalty. 

New York : A freehold of the value of £40. 

North Carolina : 50 acres freehold. 

Pennsylvania : 50 acres, of which 10 must be cleared, or £50 personalty. 

Rhode Island : Freehold of the value of £40 or of 40 shillings per annum. 
South Carolina : . 100 acres or £60. personalty. 

Virginia : 100 acres or 25 acres with a house (after 1736). 

2 "At best the colonial elections called forth relatively and absolutely 
only a small percentage of the voters. Property qualifications, poor means 
of communication, large election districts, and the absence of party organi- 
zation combined to make the most sharply contested elections feeble in 
their effects upon the community as compared with the widespread suffrage 
of the twentieth century." — A. E. McKinley, The Suffrage Franchise in the 
Thirteen English Colonies of North America. 



ENGLISH AND COLONIAL ORIGINS 21 

all the other primitive Teutonic peoples, built up a great 
body of customs which from frequent application in the 
decision of disputes came to be genuine laws. On the 
continent of Europe these national laws, in imitation of 
the Roman law, were written out in codes. In England, 
however, legal development was slower. The Norman 
kings estabhshed a powerful centralized corps of judges 
before the law had reached the codifying point. These 
judges decided the cases which came before them ''ac- 
cording to the law of the land." When there was any 
doubt as to what the law was, they fell back on the pre- 
vious decisions rendered by the royal courts. The English 
law thus came to be a judge-made or precedent law. It 
was to be found, not in a code or series of codes, but in the 
reports of decided cases for several centuries. It was, 
of course, supplemented by occasional Acts of Parliament, 
but these dealt with particular parts of the law and not 
with the law as a whole. In this "common law" were 
embedded the fundamental rights of Englishmen which 
even the king must respect and which at one time it was 
supposed even an Act of Parliament could not destroy. 
It was upon these rights that the colonists relied in their 
contest with the crown and Parliament. The colonial 
courts applied the common law and statutes of England as 
they stood at the time of the settlement of the colony 
and such other English statutes as specifically applied to 
the colonists. The right of appeal to the privy council 
from the highest courts in the colonies tended to keep 
the law of them all uniform and true to the English 
standard. 

We took over as well the English distinction between Equity 
law and equity. The rules of "the common law became at 
an early date very rigid and failed fully to meet the needs 
of an expanding civihzation. Cases arose in which justice 



22 THE BACKGROUND OF AMERICAN GOVERNMENT 

could not be obtained at law. For example, if a man 
pledged the legal title to his land as security for the pay- 
ment of a debt, — in other words, mortgaged it, — the 
law would enforce the forfeiture of the whole piece of 
land, no matter if it was worth many times the amount 
of the debt. This and many other cases were taken 
directly to the king as the ^'fountain of justice," who 
habitually referred them to his lord chancellor to do 
equity between the parties. The king's chancellor would 
in the case of the mortgage order the property sold and 
the surplus over the amount of the debt paid to the 
original owner. Furthermore, certain rights not enforce- 
able by law came to be enforced by the court of equity, 
the chancery. The only remedy which could be given 
by a court of law was damages. Chancery went further 
and commanded the defendant to stop doing the thing 
which caused the injury. If he did not obey, he was 
imprisoned for contempt. It also could order the defend- 
ant to do an act, which he owed a duty to perform, for 
the benefit of the plaintiff. Separate courts of equity 
existed in many of the colonies. 
Judicial We also derived from England our whole system of 

conducting judicial proceedings. The most charac- 
teristic features of the Enghsh system were trial by a 
jury of twelve men picked at random from the county, 
and the elaborate rules for the admission or rejection of 
evidence which had grown up in connection with it. 
Along with these we took the method of examining wit- 
nesses, the necessity for indictment or presentment by 
a grand jury in criminal cases, and many other lesser 
matters. We laid, however, in colonial times the founda- 
tion for a wide departure from English practice in the 
creation of public prosecuting ofi&cers. 



procedure 



ENGLISH AND COLONIAL ORIGINS 25 

SUGGESTIONS FOR FURTHER STUDY 

To familiarize the student with constitutions and similar docu- 
ments, it is suggested that they be sent whenever possible to the 
colonial charters, etc. The charters may be found in somewhat 
abbreviated form in Macdonald, W., Select Charters and Other 
Documents Illustrative of American History. Beaed, C. A., Readings 
in American Government and Politics,'^ pp. 2-6, gives a t5^ical com- 
mission issued to the governor of a royal province. Any of the 
standard histories of the colonial period, such as those of Doyle, 
Osgood, Fiske, Channing, etc., contain a great deal of material on 
colonial government. 

For more detailed study on the part of advanced students, Greene, 
E. B., The Provincial Governor in the English Colonies of North 
America, will give a more general account of colonial government 
than its title implies. Reference also may be made to Raper, C. L., 
North Carolina, A Study in English Colonial Government; McCain, 
J. R., The Executive in Proprietary Georgia. Stevens, C. E., Sources 
of the Constitution of the United States, gives us the English point of 
view. BoRGEAUD, Charles, The Rise of Modern Democracy in Old 
and New England, is an able and suggestive book. Fisher, Sidney 
George, The Evolution of the Constitution of the United States, traces 
in colonial charters and state constitutions the ancestry of every 
portion of our present Constitution. The value of the book is marred 
by 'inaccuracy in details. The full text of all the charters may be 
found in Thorpe, F. N., American Charters, Constitutions, and 
Organic Laws. 

Topics : 

The Charter of Any Colony. 

The Siiffrage in the Colonies. 

The Colonial Governor. 

The Upper House of the Colonial Legislature. 

Appeals to the Privy Council. 

^ This work will hereafter be cited as Beard, Readings. 



CHAPTER II 



THE EARLY STATE CONSTITUTIONS 



Provisional 
govern- 
ments 



State con- 
stitutions 
established 
on advice of 
Congress 



The outbreak of the Revolution, of course, brought to 
an end the legally existing governments of the thirteen 
colonies. The royal governors departed with less dignity 
than speed. The executive and judicial departments 
were paralyzed. There was in most of the colonies no 
legal authority which could summon the assembly. In 
these circumstances, powers of government sufficient to 
carry on armed opposition to the crown of England were 
assumed by provisional assemblies chosen in a variety 
of ways. In Massachusetts the colonial assembly which 
had been duly elected, but which the governor refused 
to recognize, met and took up the reins of government. 
In Virginia the people met in convention and appointed 
a committee of safety. In other colonies more or less ir- 
regular means were used in constituting these bodies, and 
they were mostly little more than Revolutionary com- 
mittees. Under their direction, however, the preparations 
for war went forward and actual hostilities began. 

In the autumn of 1775, the Continental Congress, in 
response to requests from New Hampshire, Virginia, and 
South Carolina, advised those states to ''call a full and 
free representation of the people in order to form such a 
form of government as in their judgements" should 
seem desirable until the difficulties with the mother 
country should be settled. This resulted in brief and tem- 
porary constitutions in New Hampshire and South 
Carolina. In May, 1776, Congress addressed to the 
states a general recommendation: ''where no govern- 

24 



THE EARLY STATE CONSTITUTIONS 25 

ment sufficient to the exigencies of their affairs has hither- 
to been estabUshed, to adopt such government as shall 
in the opinion of the representatives of the people best 
conduce to the happiness and safety of their constituents in 
particular and America in general." During the year that 
followed (1776-7), Virginia, New Jersey, Pennsylvania, 
Delaware, Maryland, Georgia, and New York adopted 
frames of government as states. South Carolina remade her 
constitution in 1778. Massachusetts, after one abortive 
effort, adopted in 1780 what is still her constitution; and 
New Hampshire replaced her first fragmentary consti- 
tution with one new and elaborate in 1784. These con- 
stitutions Mjere prepared by conventions especially 
selected for the purpose, and contained such provisions 
for their amendment as to take it out of the power of the 
legislature to alter them by the ordinary process of law- 
making. The Massachusetts constitution was not only 
prepared by a convention chosen for that sole purpose, 
but was submitted to ratification by popular vote, a 
practice that has since been generally adopted in the 
states of the American Union. 

That our Revolutionary forefathers should have dis- Colonial 
played as much practical wisdom as they did in drafting ^^^^ °^ 
these frames of government, every one of which actually constitu- 
worked, is not so remarkable if we remember the insti- *^°°® 
tutions under which they had been trained. In the first 
place, the charter colonies, including Massachusetts, and 
the colonies of Pennsylvania and Delaware had what 
were practically written constitutions. These consti- 
tutions were beyond the power of the colonial legislature 
to change and any act of the legislature contrary to their 
terms could, in the case of the charter colonies, be held of 
no effect by the privy council. In the crown colonies 
the commissions of the governors, in which time after 



26 THE BACKGROUND OF AMERICAN GOVERNMENT 



Revolution- 
ary move- 
ment not 
radically 
democratic 



time the same form of government had been outUned, 
supplied the place of a more formal constitution. It 
was most natural, therefore, for the men of 1776, when 
they found themselves without a government, to take to 
constitution writing. 

They were further assisted to good working results in 
the new constitutions by their practical disposition. 
Aside from certain theories, employed with vigor in mak- 
ing their case against the English crown, they were not 
given to abstract conceptions of what government ought 
to be. They had no disposition to frame Utopias. 
They were satisfied to employ makeshifts and compromise 
if they could only get a practical result. In this they 
differed most markedly from the French Revolutionists, 
who put into their constitution of 1791 many beautiful 
ideas and principles. Our forefathers were statesmen, and 
not philosophers. They were, furthermore, not driven 
forward by public opinion to political changes of a radical 
sort. The American Revolution was only in small part 
a democratic movement. It is true that it found support 
chiefly among the common people and was generally 
opposed by the wealthy and aristocratic elements in the 
community. There was also a great deal of talk about 
the rights of man and frequent reiteration of the theory 
that ''Governments derive their just powers from the 
consent of the governed." In all of this, however, there 
was apparently no idea that such doctrines involved the 
right of all men to participate in the affairs of the gov- 
ernment. There was little or no complaint on the part 
of the people against the form of government then in 
vogue. It need not surprise us, therefore, that only 
slight progress was made toward the establishment of 
democracy in the early state constitutions. From this 
degree of progress there was shortly after a distinct reac- 



THE EARLY STATE CONSTITUTIONS 27 

tion in the Constitution of the United States. It is very 
important from the point of view of genuine comprehen- 
sion of the development of both our state and national 
constitutions to understand these first revolutionary 
changes in the form of our state governments. 

The early state constitutions were in every instance Colonial 
merely adaptations or modifications of colonial insti- ""sconcep- 
tutions. In so far as our revolutionary forefathers tried real nature 
to copy the Enghsh institutions of their day, they showed go^r^^nt 
that they did not really understand them. Whereas, 
during the seventeenth and eighteenth centuries, the 
English monarchy underwent a complete transformation 
of spirit, there had been little change in its outward form. 
It seemed to be in practice what it was in theory, a gov- 
ernment of three independent departments. The king 
was the sole executive. In him alone were vested all the 
vast royal powers which devolved upon the crown by 
custom or statute. The legislative power was vested in 
the king and in a Parliament consisting of the House of 
Lords and the House of Commons, which had, according 
to the law, no other control over the king and his ministers 
than the right to impeach them for high crimes. The 
judicial department was vested in four great courts, the 
judges of which were appointed by the king for life and 
which to a high degree were independent of the other 
departments.^ 

As a matter of fact, however, the legal powers of the 
Enghsh king and Parliament had been overlaid by cus- 
toms as to their exercise which had completely revolu- 
tionized the character of the government. The king 
could in reality act only through ministers who must 

1 The government of England was thus described by two great writers 
widely read in America during the revolutionary period : Montesquieu, in 
his V Esprit des Lois {The Spirit of Laws), and Blackstone, in his Commen- 
taries on the Law of England. 



28 THE BACKGROUND OF AMERICAN GOVERNMENT 



Qualifica- 
tions for 
voting and 
office-hold- 
ing 



resign their positions if the House of Commons expressed 
its disapproval of their conduct. The regular course of 
things was for these ministers to meet, determine what 
they thought ought to be done, and then inform the king 
of their determination. In fact, England was governed 
by Parhament through ministers responsible to the 
House of Commons. This form of government, which 
we call the "responsible ministry" form, has worked out 
very happily in England during the last century, and 
has some distinct advantages over the form of govern- 
ment that prevails in this country; but for good or ill 
our fathers were unconscious of its existence. 

The changes in the suffrage were all in the democratic 
direction, but by no means radically so. Property 
ownership was still the condition of voting in practically 
all the new states, although the amount of property re- 
quired was generally reduced. Religious qualifications 
were abolished except in Massachusetts, where the pro- 
spective voter must profess the Christian religion, and in 
North Carolina, where he had to be a Protestant.^ 



1 Property Qualifications in Early State Constitutions 



Date of 






Adoption 
OF Con- 


State 


Qualifications 


stitution 






1776 


Connecticut 


Freehold of 40 s. annual value or £40 of per- 
sonal property 


1776 


Delaware 


Payment of state and county tax 


1777 


Georgia 


£10 personalty, payment of taxes, or being a 
mechanic 


1776 


Maryland 


Ownership of 50 acres of land or of £30 
personal property 


1780 


Massachusetts 


Freehold of £60 value or £3 of income (Must 
profess the Christian religion) 


1776 






1784 


New Hampshire 


Freehold of any value 


1776 


New Jersey 


Ownership of an estate worth £50 



THE EARLY STATE CONSTITUTIONS 



29 



There were also property qualifications for governor 
and other state officers. In South Carolina the governor 
had to have a freehold estate of £10,000 value. In Mary- 
land it was £5000, and a requirement of £1000 was com- 
mon. State senators in several states were obliged to 
own real property worth at least £1000. For the lower 
house the qualifications were smaller, although £500 was 
the sum fixed in several states. The religious opinions 
of legislative and executive officers were considered of 
more importance than those of mere voters, and these 
early constitutions were very stringent in requiring them 
to be Christians, — usually of the Protestant confession. 

In the organization of the legislative department there Form of the 
was also some departure from the colonial arrangements, legislature 
A certain general distrust of power was evident in the 
establishment everywhere of annual election of the lower 
house of the legislature. There were to be no more long 
intervals between meetings of the representatives of 
the people at the whim of the executive. In seven of 
the thirteen states the upper house was elected by the 
people. In four it was chosen by the lower house. In 



Property Qualifications in Early State Constitutions {Continued) 



Date of 






Adoption 
OF Con- 


State 


Qualifications 


stitution 






1777 


New York 


Freehold of £100 value to vote for senator. 
Freehold of £20 or 40 s. income to vote for 
other ofl&cers 


1776 


North Carolina 


Freehold of 50 acres to vote for senator. 
Tax payers might vote for assemblymen 


1776 


Pennsylvania 


Payment of taxes 


1776 


Rhode Island 


Freehold of £40, or 40 s. per annum rental 
value. 


1778 


Virginia 


Freehold of fifty acres, or twenty-five with a 
house (adding poll tax in 1781) 



30 THE BACKGROUND OF AMERICAN GOVERNMENT 

one, Maryland, it was chosen by electors, wherein some 
people see the origin of the method of electing the Presi- 
dent of the United States. Pennsylvania continued to 
get along with a single legislative chamber. Except in 
three states, Connecticut, Rhode Island, and Georgia, the 
upper house ceased to be itself a branch of the executive 
department, although in several states certain of its mem- 
bers were members of the governor's council. Each of 
the two houses had everywhere the right to provide for 
its own internal organization, and the Speaker continued 
to occupy, if not exactly the place which had been his 
before Independence, a position of great influence and 
power. It is interesting to note, too, that the lower house 
was called the "assembly" in six states, the ''house of 
representatives" in four, the ''house of delegates" in 
two, and the " house of commons " in one. Seven states 
gave the name "senate" to their upper house. 
Dominance More significant than any changes in form was the 
of the increase in relative importance of the legislative depart- 

ment, especially as compared with the executive. We 
have already seen how the political struggle which pre- 
ceded the. Revolution was to a large extent between the 
royal governor and the popular representative assembly. 
Such a contest inevitably led to a distrust of executive, 
authority and a distinct unwillingness to create another 
master in the place of the one they had shaken off. On 
the other hand, the assembly, which had all along been 
the great champion of popular rights, seemed to be the 
safest place in which to locate power. The result was that 
the earUest state constitutions centered nearly everything 
in the legislature. In ten states the governor was elected 
by the legislature. Even in Massachusetts, New Hamp- 
shire, and New York, where he was chosen by the people, 
his executive power was to a considerable extent shared 



THE EARLY STATE CONSTITUTIONS 31 

by the legislature. In Virginia, Massachusetts, and New 
Hampshire a council, elected by the joint action of both 
houses, limited his authority in the matter of appointments, 
pardons, etc. In New York the governor's appointments 
had to be ratified by a council of appointments, consisting 
of one senator from each district. In Massachusetts the 
governor was given a veto on the acts of the senate and 
the house of representatives, but, unhke the absolute veto 
of the colonial governor, a measure to which he refused his 
assent might still become a law if passed by a two-thirds 
majority in each house. In New York a veto of similar 
effect was vested in a council of revision, consisting of 
the governor and two judges. Aside from these two 
states, the governor had no veto, such a power being 
obviously out of place in the hands of an officer elected 
by the very body whose acts he would, if he possessed 
it, be required to negative. In all the states where the 
upper house itself did not act as his council, the execu- 
tive power was in part exercised by a council elected by 
the legislature, usually from among their own number. 
The judges were appointed by the governor, with the 
advice of his council, in five states, and in the others 
were elected by the legislature. In one of the five states 
where judges were created by executive appointment, 
Pennsylvania, they could be removed by the legislature. 
The early constitutions commonly provided for the im- 
peachment of executive and judicial officers. The terms 
for which such officers were elected were usually not more 
than one year. In other words, the executive was every- 
where, except in Massachusetts, New Hampshire, and 
New York, completely subordinated to the legislature, and 
in those three states his power was closely hedged about. 

All taken together, while no radical changes had been Responsive- 
^ ^ . ness to 

made in the form of the government, and while the suf- popular will 



32 THE BACKGROUND OF AMERICAN GOVERNMENT 

frage had been extended only a short distance in the di- 
rection of democracy, the government was necessarily 
responsive to the wishes of those who did possess the 
franchise. 
Bills of About half of the first crop of state constitutions con- 

"^ ® tained, besides the framework of the new government, 

an elaborate statement of the rights of man and of the 
general principles of free government. Among the rights 
thus guaranteed were those of liberty of worship, security 
of life, liberty, and property according to law, free elec- 
tions, trial by jury, Uberty of speech and of the press, 
freedom from bills of attainder and of ex post facto laws, 
right to bear arms, and freedom from quartering of troops. 
Among the principles of government most emphasized 
was that of frequent elections, which to the people of that 
day meant annual elections. The constitution of Virginia 
provided : *' That the legislative and executive powers of 
the State should be separate and distinct from the judi- 
ciary ; and that the members of the two first may be re- 
strained from oppression, by feeling and participating the 
burdens of the people, they should, at fixed periods, be 
reduced to a private station, return into that body from 
which they were originally taken, and the vacancies be 
supplied by frequent, certain, and regular elections, in 
which all, or any part of the former members, to be 
again eligible, or ineligible as the laws shall direct." 
Nowhere has the democratic theory of government been 
expressed more clearly. 
Separation Another principle of the early constitutions was that 
powers ^£ ^-^^ separation of powers. This idea had its classic 
expression in the constitution of Massachusetts: "In 
the government of this commonwealth, the legislative 
department shall never exercise the executive and judicial 
powers, or either of them ; the executive shall never exer- 



THE EARLY STATE CONSTITUTIONS 33 

cise the legislative and judicial powers, or either of 
them ; the judicial shall never exercise the legislative and 
executive powers, or either of them; to the end it may 
be a government of laws, and not of men." ^ 

In the disturbed conditions which followed the end of The con- 
the war for independence, widespread distress among the reaction 
common people brought about the control of the readily 
responsive mechanism of government by persons who 
threatened the right of property and seemed unable to 
bring about that internal peace and good order which 
was so essential to the restoration of prosperity. All 
sorts of schemes for the relief of debtors, the printing of 
wildcat paper money, and other measures equally inde- 
fensible, were attempted. This inevitably led to a con- 
servative reaction, to which movement we owe in part the 
Constitution of the United States. This movement did 
not propose to narrow the suffrage but it established a 
system of checks and balances, which, while it left the 
people apparently as much power as ever in the election 
of officers, as a matter of fact made it very difficult to do 
anything about which everybody was not agreed. The 
gubernatorial veto was widely introduced at the same 
time that the governor was made elective by the people 
for a term ordinarily longer than that of the legislature. 
Both houses were made elective by the people, the upper 
usually for a longer term than the lower. Each of these 
changes made it more difficult for public sentiment to 
result in action. The courts assumed the right to hold 
void statutes which, in their opinion, violated the Con- 
stitution, thus establishing another barrier to the popular 
will. While these changes were less marked in the states 
than in the national government, there was evident for 
some time a tendency away from democracy and toward 

^ Part I, Article xxx. 



34 THE BACKGROUND OF AMERICAN GOVERNMENT 

a system more favorable to property and the interests of 
the rich and well born. When this tendency had spent 
itself, the great movement for democracy, world-wide 
and ages old, resumed its onward march. 

SUGGESTIONS FOR FURTHER STUDY 

. An excellent, careful account of the organization of early state 
governments will be found in Thorpe, F. N., Constitutional History 
of the American People, pp. 60-100, showing which features were 
based on English forms, which were original, and which were prece- 
dents for the federal Constitution. This account can be profitably- 
supplemented by ScHOULER, James, Constitutional Studies, pp. 29-69, 
where the treatment of Revolutionary Bills of Rights and their 
effect on the ratification of the federal Constitution is clear and 
interesting. Invaluable as the foundation for a clear understanding 
of the political theory of the period is the scholarly delineation in 
Merriam, C. E., American Political Theories, pp. 38-96, which 
should be supplemented by Ford, H. J., Rise and Growth of American 
Politics, pp. 17-33, for ^^ accurate description of the changes in the 
Revolutionary movement from allegiance to the king to the outbreak 
of the war. The best accounts of the evolution of qualifications for 
suffrage can be obtained in a brief, convenient statement by Cleve- 
land, F. A., Organized Democracy, pp. 130-150; Beard, C. A., Ameri- 
can Government and Politics,^ pp. 78-81 ; Thorpe, F. N., Constitu- 
tional History of the American People, pp. 93-97, which has a very 
interesting table illustrating early limitations by different state 
constitutions. 

It is further suggested that in states which entered the Union 
prior to 1800, a study of the actual constitutional arrangements of 
your state wiU be interesting and valuable. The texts of all state 
constitutions from the beginning can be found in Thorpe, F. N., 
American Charters and Constitutions , published by the United States 
Government. 

Topics : 

BiUs of Rights. 

Governor in the Early State Constitutions. 
Lower House in Early State Constitutions. 
Upper House in Early State Constitutions. 

^ This work will hereafter be cited simply as Beard. 



CHAPTER III 
FORMATION OF THE UNION 

During the colonial period there were only scattered Forces for 
efforts to bring together the settlements of the Atlantic ^q^^^"^* 
seaboard in any form of common government. The 
great stretches of wilderness which separated the col- 
onies from one another made strongly against the spirit 
of union. Local patriotism was much in evidence, and 
their common dependence on Great Britain was an 
obstacle to the recognition of general interests. Further- 
more, the mother country regarded with jealousy the 
idea of a colonial federation which might unduly arouse 
the spirits of her always unruly children. Over against 
these influences must be set the common nationality of 
the colonists and their common dangers from the French 
and the Indians. 

This danger was the occasion for the formation of the The New 
first and most effective of the intercolonial unions, the c^^edera- 
New England Confederation. Its members were the tion 
colonies of Massachusetts, Plymouth, Connecticut, and 
New Haven. The legislature of each colony elected two 
commissioners to its governing body. They met annu- 
ally at the capital of each colony in rotation, except that 
it was Boston's turn every other year. The concurrence 
of six of the eight commissioners was necessary to any 
action. The principal business of the Confederation was 
defense against the Indians, but the commissioners were 
given power likewise ''to frame and establish agreements 
and orders in general cases of a civil nature, wherein all 
the plantations are interested for preserving peace amongst 

35 



36 THE BACKGROUND OF AMERICAN GOVERNMENT 

themselves and preventing as much as may be all occasions 
of war or difference with others." The Confederation 
had no means of compelling obedience to its designs, 
and when, as in the case of the Dutch war, Massachusetts, 
which was larger than all the rest of the members put 
together, refused to cooperate, there was no possibility 
of coercing her. The Confederation was active and use- 
ful from its foundation in 1643 to the absorption of New 
Haven by Connecticut. After that it languished, except 
that it revived temporarily for its greatest achievement, 
the successful conduct of King Philip's War. With the 
abrogation of the charter of Massachusetts in 1684, it 
passed out of existence. 

In the years which intervened before the breaking out 
of the quarrel between the colonists and the mother 
country over the Stamp Act, there were numerous con- 
ferences or conventions of the colonies on Indian affairs. 
In a few instances there was concerted action taken by 
several colonies against the French and their dusky allies. 
Nothing, however, like a permanent union was created 
for any purpose. Several interesting proposals were put 
forward by men interested in the colonies, — notably 
Penn in 1698 and Davenant in 1701, — but they never 
got beyond the stage of speculation. 
The Albany One of the colonial congresses deserves particular at- 
^°J^®^^, tention, that held at Albany in 1754, at the suggestion 
of union of the British Lords of Trade. It was attended by the 
delegates of seven colonies, many of the most distin- 
guished men in America, among them Benjamin Franklin. 
This great statesman, who had long advocated the union 
of the colonies, had ready a plan of union which was 
adopted by the congress. There was to be a "president- 
general" appointed by the crown, and a ''great council" 
to be chosen by the representatives of the people of the 



FORMATION OF THE UNION 37 

several colonies in their respective assemblies. Repre- 
sentation in the great council was to be based on the con- 
tributions of each colony to the general treasury. The 
acts of the great council were to be subject to veto by 
the president-general. The functions of the government 
thus organized were to be the conduct of Indian affairs, 
the government of new settlements until they had been 
made colonies by the king, the support of an army, the 
maintenance of forts, and for these purposes the laying 
of general " duties, imposts, or taxes." This plan was 
regarded with suspicion both in this country and in Eng- 
land, so that nothing came of it. Its only real signifi- 
cance lies in the fact that it was the work of a man who 
was to take a prominent part in the actual formation of 
the American Union. 

It was only when the long-smoldering controversy The pre- 
with the mother country over the right of Parliament to arTcon-°^' 
tax the colonies broke into flame, that the colonists seem gresses 
for the first time to have become conscious of a need for 
a union. The Stamp Act Congress was an expression of 
this growing feeling. It only meant, however, that the 
men of Massachusetts and South Carolina were ready to 
get together to protest against a common grievance. 
United action was still far off. As the pre-Revolutionary 
debate waxed hotter, the Whig or Patriot party found it 
necessary to organize first local and then intercolonial 
committees of correspondence. This political machine 
created the habit of common action among the members 
of the dominant party in all the colonies. The way was 
well paved, therefore, for the first Continental Congress, in 
1774, in which all the colonies except Georgia participated. 
It did nothing but protest and call for a second Congress 
to be held the succeeding year. Before this body as- 
sembled, war had begun. 



^8 THE BACKGROUND OF AMERICAN GOVERNMENT 



The Conti- 
nental 
Congress 



The Articles 
of Confed- 
eration 



It was immediately necessary for the Congress to 
assume the widest kind of revolutionary powers. It 
raised an army, conducted foreign relations, printed 
paper money, negotiated loans, and ultimately declared 
the independence of the thirteen states. There was no 
limit to its power except the necessities of the situation. 
It was, however, a most irregularly constituted body. 
Its members were not chosen by any legal authority, 
but by a variety of conventions, mass meetings, and 
committees. It was a party, not a national organ. It 
was thought to be imperative that some regular and orderly 
basis should be given to the government of the new 
nation. The first step in this direction was the advice 
given to the states in May, 1776, to ''adopt govern- 
ments." The second was the appointment of a committee 
on June 11, 1776, to draw up articles of confederation. 
It was not, however, until November, 1777, that the 
Articles of Confederation were actually approved by 
Congress. Though they provided that they should be 
of effect only after ratification by all the states, a con- 
summation not reached until 1781, they were practically 
put in force from the date of their approval by Congress. 

There can be no more conclusive proof of the impossi- 
bility of faking forms of government permanent by 
declaring them to be unchangeable than the brief and 
stormy history of the ''Articles of Confederation and 
Perpetual Union." They were pronounced to be un- 
amendable except by the consent of all the states, but 
after a single decade they were cast aside without even 
that formality. Under them all the powers of the central 
government continued to be exercised by Congress. In 
this body each state was entitled to not more than seven, 
nor less than two, representatives. Each state, however, 
was entitled to one vote only, the delegation from the 



FORMATION OF THE UNION 39 

state determining how that vote should be cast. In case 
of tie, the vote was lost. Representatives were to be 
elected " in such manner as the legislature of each state 
shall determine," which meant in practice that they were 
chosen by the state legislatures. They were subject to re- 
call by the state which sent them, and habitually depended 
on instructions from the home legislature as to how they 
should cast their votes on important questions. They 
were paid whatever the discretion or generosity of tfieir 
states suggested. Congress elected a presiding officer 
called the "president," but no person could hold that 
office more than one year in three. There was no inten- 
tion of permitting another kind of king to be smuggled in 
upon them in the guise of a president. There was no 
executive department, and indeed little need of one, be- 
cause Congress had small power to do anything but 
recommend action to the states. Such business as there 
was of an executive sort was carried on by Congress it- 
self through committees. To guard against the possi- 
bihty of anarchy while Congress was not in session, there 
was created a committee of states, one member from each 
state, which could do anything in the interim which 
might be done by a simple majority in Congress. 

The powers of Congress at first glance appear rather The powers 
ample. They included the power of making peace or gj-ggg^f the 
war, and conducting foreign relations, regulating the Confedera- 
alloy and value of coin and coining money, building and 
maintaining a navy, appointing all military officers above 
the rank of colonel, borrowing money, and emitting bills 
of credit. Experience, on the contrary, showed three 
great weaknesses : 

I. The states might regulate commerce to suit them- 
selves, which resulted in silly and wasteful efforts on the 
part of the states to profit at one another's expense and 



40 THE BACKGROUND OF AMERICAN GOVERNMENT 

prevented the Congress from making effective commer- 
cial treaties with foreign countries. 

2. Congress could not pass laws and enforce them 
against individuals. It could only direct its commands 
to the states, and as there was no possibility of coercing 
a state, if it desired to nullify the laws of Congress it could 
do so. Congress might, for example, ask each state for 
a certain number of soldiers, but if the states neglected to 
furnish them, as they generally did. Congress was helpless. 

3. Congress had no power of taxation. It could only 
apportion to each state its share of the expenses and wait 
for the state to respond. So remiss were the states in 
this regard that without the aid of foreign loans the 

. Revolution would have been a failure. After the war 
was over the revenues of Congress sank to the absurd 
level of about $500,000 a year. 
The critical The years which succeeded the Revolution saw a great 
penod ^g^j q£ raisery and consequent discontent, to which we 

have already referred. The disorders of the time led 
men to desire some authority strong enough to cope with 
any disturbance, and to guarantee the stability of gov- 
ernment throughout the country. The struggles of New 
York and New Jersey, to take a typical example, for the 
trade of New York Bay, caused thinking men to see the 
necessity of a common regulation of commerce. It was 
essential to the honor of the new nation that it be given 
revenue to pay its debts. It was necessary to its con- 
tinued independence that it have adequate means of de- 
fense. All attempts, however, to amend the Articles of 
Confederation were unavailing. 

At this juncture a curious train of circumstances was 
set in motion by the dispute of Maryland and Virginia 
over the navigation of the Potomac. The commissioners 
appointed to settle this dispute recommended the ap- 



FORMATION OF THE UNION 41 

pointment of a new commission to prepare a tariff schedule 
to be enforced by both states. Virginia, thereupon, issued 
a call for a convention at Annapolis to consider the ex- 
tension of the powers of the Confederation with regard 
to commerce. This convention, which met in 1786, was 
attended by delegates from only five states. Instead of 
waiting for others who were on the way, they adjourned 
after adopting a resolution calling upon Congress to 
summon delegates from all the states to a convention to 
be held in Philadelphia in the spring of 1787 for the pur- 
pose of amending the Articles of Confederation generally. 
Congress responded to this suggestion, and in May, 1787, 
the most important assembly in the history of our country 
began its deliberations. 
It was for a long time the custom for all writers on our The Consti- 

history and poHtics to laud without reserve the ability *^**o^^ 

. -^ Convention 

and motives of the men who framed the Constitution, of 1787 
More recently there has been a tendency to depreciate 
their work and to ascribe to them the desire to deceive 
the people into surrendering the right of direct self- 
government. As a matter of fact, the men who gathered 
in Philadelphia for the purpose of amending the Articles 
of Confederation were better fitted for such a task than 
any similar body that has ever assembled. Most of 
them had had the advantage of experience in public 
affairs, and they all approached the problem before them 
in a practical spirit. Their problem was to erect a stable 
central government, at the same time preserving in as 
large a measure as possible the independence of the states. 
They simply took old and well-tried governmental mecha- 
nisms and adapted them, with a minimum of change, to the 
new situation. In view of the numerous efforts of con- 
stitution makers in other countries which have failed, 
they deserve the highest credit for giving us at the first 



42 THE BACKGROUND OF AMERICAN GOVERNMENT 



The Consti- 
tutional 
Convention 
and 
democracy 



attempt a workable government. There was one piece of 
construction in the edifice which they reared which was 
of marked originaHty — the fact that the federal govern- 
ment acted directly on the citizen. Every power of law- 
making given to the government of the Union carried with 
it a corresponding executive and judicial power. Within 
the sphere marked out for it the federal government was 
a complete working government. It could recruit its 
own army and lay its own taxes. This was a new thing 
in federations, and it made all the difference between 
the failure of the Articles of Confederation and the suc- 
cess of the Constitution. 

We have already seen that the perils of the critical 
period and the inefficient manner with which somewhat 
democratic state governments dealt with them had led 
to. a conservative reaction. The framers of the Constitu- 
tion belonged to the well-to-do class, whose pocketbooks 
and opinions had been adversely affected by the pro- 
debtor laws of legislatures and the violence of hungry 
mobs. They were determined to steer clear of what 
they considered to be the evil of the state constitutions, 
a too ready response to passing popular feeling. They 
therefore created what has since come to be known as 
the "system of checks and balances." They gave the 
executive department into the keeping of the President, 
elected indirectly by the people every four years; the 
legislative to a House of Representatives elected by the 
people every two years, and to a Senate, the members of 
which were elected by the state legislatures for six years ; 
the judiciary to judges appointed for life and removable 
only by the very difficult process of impeachment. The 
President checked the legislature by the veto which was 
given him, over its laws ; the legislature checked the Presi- 
dent by its control over appropriations and by the share 



FORMATION OF THE UNION 43 

given the Senate in making treaties and appointments. 
The courts checked both the other departments by their 
abihty to treat as null and void any action contrary to 
law or the Constitution. The result of this arrangement 
was the desired one of stability. The people under it 
could have their own way, but only after a lapse of time 
sufficiently long to affect all these numerous interlocking 
authorities. There can be no denying that this violated 
the principle of popular rule. On the other hand, it is 
clear that it was absolutely necessary at that time to 
have a stable central government. If it had not been 
established, there would probably be no United States 
today. If in the course of our social development the 
system which they established has since become an 
obstacle to good government, it should not be permitted 
to diminish the honor in which we hold them. It is wrong 
to judge the government of yesterday by the standard 
of today. 

The framers of the Constitution with admirable bold- The making 
ness abandoned at the very beginning the notion of ^^ ^^ Jj^^*" 
amending the Articles of Confederation. They made a Constitution 
wholly new instrument, and when their labors were over, 
submitted it to Congress with the suggestion that it should 
go into effect when ratified by conventions called for the 
purpose in the nine states. Congress submitted it to the 
states, and on June 21, 1788, when New Hampshire as 
the ninth state signified its assent to the new form of 
government, it went into effect in the nine ratifying 
states. The others soon joined the union, little Rhode 
Island last. Elections were held for presidential electors 
and members of Congress, and the 4th of March, 1789, 
was set as the date for the inauguration of the new gov- 
ernment. Although President Washington was not 
actually sworn in, on account of the slowness with which 



44 THE BACKGROUND OF AMERICAN GOVERNMENT 

the members of the new Congress gathered in New York, 
until somewhat later, the 4th of March has remained 
the day from which all terms of elective office under the 
United States are counted. 

SUGGESTIONS FOR FURTHER STUDY 

The work that has already been begun of the actual study of 
charters and constitutions should be continued in connection with 
this chapter : Articles of Confederation of the United Colonies of New 
England, American History Leaflets, No. 7 ; Plan of Union, Ben- 
jamin Franklin, American History Leaflets, No. 9 ; Exact Text of the 
Articles of Confederation, with the Franklin and Dickinson Drafts, 
American History Leaflets, No. 20; the Constitution of the United 
States (see Appendix). 

Additional descriptive material on the field covered by this 
chapter may be found in any of the standard histories ; for example, 
Channing, Edward, History of the United States. Frothingham, 
Rise of the Republic, is an excellent book devoted to the development 
of the Union, On the New England Confederation, see Fiske, John, 
The Beginnings of New England, pp. 140-198; Osgood, H. L., The 
English Colonies in the Seventeenth Century, vol. i, pp. 392-423. On 
the period following the Revolution see Fiske, John, The Critical 
Period of American History. On the Constitutional Convention, see 
Farrand, Max, Records of the Federal Constitution (a vast work) and 
The Framing of the Constitution of the United States; Madison, James, 
Notes (any edition) ; Beard, C. A., An Economic Interpretation of 
the Constitution of the United States and The Supreme Court and the 
Constitution. Smith, J. Allen, The Spirit of American Government, 
deals with the convention as expressing the conservative reaction. 

Topics : 

The New England Confederation. 

The Albany Plan of Union. 

The Continental Congress. 

The Articles of Confederation. 

The Critical Period. 

Personnel of the Constitutional Convention. 

Reports of the Convention. 

History of the Convention. 

The Ratification of the Constitution. 



CHAPTER IV 
THE AMERICAN FEDERAL SYSTEM 

We have already noted one of the fundamental charac- 
teristics of the government created by the Constitution 
of the United States; namely, that it acted directly on 
the individual citizens of the country. We have seen 
that this was a new departure in federal government, 
and was largely responsible for the success of the United 
States. We must now consider the nature of the union 
thus created and the precise limits of the powers of the 
United States and of the several states. 

The first step in this process is the appreciation of the The Constl- 
significance of the provision, "This Constitution, and the supreme !aw 
laws of the United States which shall be made in pursuance of the land 
thereof, and all treaties made, or which shall be made, under 
the authority of the United States, shall be the supreme 
law of the land; and the judges in every state shall be 
bound thereby, anything in the constitution or laws of 
any state to the contrary notwithstanding." ^ It is further 
declared that the judicial power of the United States shall 
extend among other things to all cases arising under the 
Constitution and laws of the United States, and treaties 
made under their authority. This does not mean that the 
decision of every case involving the Constitution of the 
United States will come up in the United States courts. 
It may be settled in the state courts if the action in which 
the constitutional question arises begins there. The 
Judiciary Act, however, which was one of the first acts 
passed by the first Congress, provided that a case in- 
^ Article VI, Section i, Clause 2. 
45 



46 THE BACKGROUND OF AMERICAN GOVERNMENT 



The speci- 
fied and 
implied 
powers of 
Congress 



volving the Constitution or laws of the United States 
might be appealed from the decision of the highest state 
court to the Supreme Court of the United States, if 
the decision of the state court had been against the 
applicability of the Constitution or law of the United 
States. Each state, therefore, has its own law and its 
own courts. The United States has its own law and 
courts. When, however, the United States law — in- 
cluding, of course, the Constitution — comes into con- 
flict with the state law, the former must prevail, and 
to insure its prevailing, the Constitution has given the 
last word in such matters to the Supreme Court of the 
United States. 

We must next get clearly in our minds that the United 
States is a government of specified powers. The Con- 
stitution conferred on the Congress only certain enu- 
merated powers. Furthermore, the people of the several 
states, fearing the assumption of additional authority 
by the central government, demanded the adoption of 
the Tenth Amendment ^ to the Constitution, which pro- 
vides that "the powers not delegated to the United 
States by the Constitution nor prohibited by it to the 
states, are reserved to the states, respectively, or to the 
people." There are, however, certain powers which 
may be fairly implied from those otherwise granted. 
Congress has power "to make all laws which shall be 
necessary and proper for carrying into execution the 
foregoing powers, and all the other powers vested by this 
Constitution in the government of the United States, or 
in any department or officer thereof." ^ From the very 

^ The process of amendment is sufl&ciently described in the Constitution 
itself. So far all amendments have originated in resolutions passed by a 
two-thirds majority in each house of Congress. The several amendments 
are discussed in their appropriate connections. 

2 Article I, Section 8, Clause i8. 




View of the dome of the national Capitol at Washington, from Pennsylvania 

Avenue. 



THE AMERICAN FEDERAL SYSTEM 47 

beginning there were disputes as to what powers should 
be considered " necessary and proper." 

i The first important controversy of this sort arose over Hamilton 
Hamilton's proposition to create a national bank. Jef- jegej-son 
ferson held that there was no warrant in the Constitu- 
tion for the creation of such a bank ; that a bank was not 
necessary to the collection of taxes, the borrowing of 
money, or any of the other functions of the United States, 
as defined in the Constitution. Hamilton, on the other 
hand, contended that if no power could be exercised under 
Clause 18 except one which was necessary in the sense 
of being the only available alternative, no powers could- 
ever be exercised under it. Congress would, he said, be 
unable, if Jefferson's view prevailed, to choose between 
different means of carrying out the power specifically 
granted, and therefore the whole system of government 
would be greatly hampered. Washington accepted 
Hamilton's reasoning and the Bank of the United States 
was created. 

The theory of implied powers was definitely settled in McCulloch 
the famous case of McCulloch vs. Maryland, decided by ^^- Maryland 
Chief Justice Marshall in 1819.^ He adopted Hamilton's 
view. While there have since been many questions as 
to whether a particular measure of Congress was justified 
under the doctrine of implied powers, the doctrine itself 
is settled. To all intents and purposes it amounts to 
this: change the "and" in "necessary and proper" to 
"or," so that the Constitution reads "necessary or proper." 
Under this clause thus interpreted Congress has been 
exercising wider and wider powers. 

Congress was given power "to lay and collect taxes, 
duties, imposts, and excises," to borrow money, to coin 
money, and regulate its value. The states are forbidden 

^ 4 Wheaton 415. 



48 THE BACKGROUND OF AMERICAN GOVERNMENT 



The finan- 
cial powers 
of Congress 



The com- 
mercial 
power of 
Congress 



to levy any duties on imports or exports, so that the 
power of Congress over this method of raising revenues 
is exclusive. Other methods of taxation may be em- 
ployed by both the United States and the states.^ Con- 
gress, on the other hand, is forbidden to lay direct taxes 
except in proportion to the population of the states. 
This makes it very difhcult to lay fair direct taxes, and 
except in time of war the United States has not resorted 
to this method of raising revenue. The Supreme Court 
in 1893 held an income tax to be a direct tax. As such a 
tax could not be apportioned according to population, 
the sixteenth amendment was required to give Congress 
power to use this source of revenue. 

Congress is given by the Constitution the power to 
regulate commerce, both interstate and foreign, and that 
with the Indian tribes. This power has actually turned 
out to be the most expansive of all the powers of the 
federal government. In 1787 foreign commerce was 
conducted in saihng vessels and was of very limited 
extent. It required five or six weeks to cross the At- 
lantic. The objects of commerce were limited to a few 
raw products of America and simple manufactured goods 
of Europe. Today swift ships have annihilated ocean 
distances and the objects of foreign commerce have be- 
come of such enormous extent and variety as to stun the 
imagination. Interstate commerce was in 1787 almost 
negligible, except such border commerce as might take 
place between two neighboring states, the settled portions 
of which were close together. It required five or six days 
to make the trip by land from New York to Boston. The 
journey was not unattended by peril, and few passengers 
undertook it. Goods could be transported overland only 
by wagon, at great risk and expense. What interstate 

1 A general discussion of this subject will be found in later chapters. 



THE AMERICAN FEDERAL SYSTEM 49 

commerce there was, was carried on in coasting schooners, 
and was at best slow and expensive. With the develop- 
ment of canals, railways, telegraphs, telephones, parcel 
post, and rural free delivery, all this has changed. Prac- 
tically every important product manufactured in or im- 
ported into the United States is a subject of interstate com- 
merce. The Western cowboy who seeks to provide him- 
self with a broad-brimmed "Stetson" will find on inspec- 
tion that it is manufactured in New York. The high 
boots he buys bear the mark of a Brockton, Massachusetts, 
manufacturer. His riding gloves are manufactured of 
Brazilian hide in Gloversville, New York. The pistol 
which he sticks in his belt is a product of New Haven. 
From head to heel he is the beneficiary or victim of inter- 
state commerce. 

The result is that the power of Congress to regulate Effects of 

interstate and foreign commerce has become relatively power of 
r ' 1 ' • r. T-. 1 1 Congress 

far more important than it was m 1787. further, be- over inter- 
cause practically all products are subjects of interstate s*^*f ^^ 
commerce, Congress has been able, under the guise of commerce 
^'interstate regulation," to enter the general field of 
social legislation. The pure food laws of Congress apply 
only to the articles of interstate commerce, but that 
means to practically all articles. The child-labor laws 
proposed in Congress would apply only to factories pro- 
ducing goods for interstate commerce, but that is a large 
proportion of all factories. The power of Congress to 
regulate the rates of railroads engaged in interstate com- 
merce has been extended to include a considerable degree 
of regulation of the intrastate business of those roads. 
Whenever a power is exercised by Congress under the 
interstate commerce clause of the Constitution, it wipes 
out all conflicting powers of every state. The power of 
regulating interstate commerce, to sum it all up, has 



50 THE BACKGROUND OF AMERICAN GOVERNMENT 

been the greatest means of congressional encroachment 

upon the powers originally left to the states. 

Miscella- The military power of the United States is very ex- 

neous tensive. Consrress is sriven the power to declare war, to 

powers . . . 

raise and support armies, to provide and maintain the 

navy, to make rules for the land and naval forces, to pro- 
vide for calling out the militia of the several states, and 
for uniform regulations concerning the organizing, arm- 
ing, and disciplining of the militia. Congress has the 
power to establish post offices and post roads, to en- 
courage science and letters by granting patents and 
copyrights. It has the power also to establish a uniform 
rule of naturalization and uniform laws on the subject 
of bankruptcy.^ 
Limitations The Constitution specified certain limitations on the 

on powers of powers of Congress. The first of these, concerninsj the 
Congress ^ ° . . 

slave trade, has long since been obsolete. Congress is 

forbidden to suspend the privilege of the writ of habeas 
corpus, except ''when in case of rebellion or invasion, 
the public safety may require it." As a matter of fact, the 
privilege of the writ was suspended during the Civil War 
by President Lincoln, Congress afterwards ratifying his 
action. Another prohibition relates to the passage of 
bills of attainder, a species of legislation by which men 
were judged guilty of offenses and as a punishment de- 
prived of life, liberty, or property. Ex post facto laws, 
or laws making criminal, acts which were not criminal 
at the time of their commission, were forbidden. Under 
this section no taxes or duties may be laid on arti- 
cles exported from any state, or preference given to the 
ports of one state over those of another. This latter 

1 When there is no federal law on the subject of bankruptcy, state laws 
govern. At the present time a federal Bankruptcy Act passed in 1898 is 
in effect. 



THE AMERICAN' FEDERAL SYSTEM 51 

clause helps to preserve the equality of the states. Titles 
of nobility may not be granted by Congress, nor can any 
officer of the United States receive an office or title or 
gift of any kind from a foreign prince or state without 
the consent of Congress. 

Further restrictions on the powers of Congress are to The Bill of 
be found in the first ten amendments, which were pro- ^^shts 
posed by the first session of Congress and ratified by the 
states in 1791. These articles constitute what is known 
as the Bill of Rights, and they correspond very closely 
to the bills of rights of the early state constitutions which 
we have already mentioned. 

Hamilton argued against their necessity on the ground 
that the government of the United States, being one of 
specified powers, could never be guilty of the particular 
acts of oppression forbidden. The people, however, 
were not satisfied, and in several states they made the 
adoption of some such provisions as these the condition 
of ratifying the Constitution. It is not necessary at 
this point to discuss in detail the effect of these amend- 
ments. Similar limitations have been placed in practi- 
cally all of our state constitutions, and since the states 
come much more into contact with the individual citizen, 
it will be more appropriate to examine them in connection 
with the power of the state legislatures. 

Section 10 of Article I of the Constitution forbids the Limitations 
states to have any relations with foreign countries, or on the states 
with one another. They cannot enter into treaties, al- 
liances, or confederations. In this respect they differ 
from the states of the German Empire and Switzerland, 
which may make treaties with one another and under 
certain circumstances with foreign countries. The states 
were also forbidden to keep troops or ships of war in time 
of peace, or to engage in war unless actually invaded, 



52 THE BACKGROUND OF AMERICAN GOVERNMENT 

or in such imminent danger as will not admit of delay, 
except by the consent of Congress.^ These provisions 
taken together eliminated the possibility of any state 
acting in a relation outside of the Union. The states 
were furthermore forbidden to coin money, issue paper 
money, or make anything but gold and silver legal tender 
in payment of debts, thus preventing for the future the 
wild financial legislation which had so disturbed the 
period before the adoption of the Constitution. Like 
Congress, the state legislatures were denied the power of 
passing bills of attainder, ex post facto laws, and, slipping 
along unobtrusively near the end of the clause, "all 
laws impairing the obligation of contracts." This pro- 
vision was intended to add still another protection to the 
creditor class which had sometimes suffered through 
early state legislation. In the famous case of Dartmouth 
College vs. Woodward, Chief Justice Marshall decided 
that a law repealing the charter of a corporation was in 
violation of this provision of the Constitution. The 
effect of this decision has been far more extensive than 
Chief Justice Marshall could have imagined. In his 
day there were few corporations. During the last century, 
however, they have become the typical form of American 
business organization, and Marshall's interpretation of 
this clause helped to place them beyond the control of 
the law until the legislatures learned to introduce saving 
clauses into all charters. ^ 

The most important limitations on the power of the 
states are those imposed by the Thirteenth, Fourteenth, 

^ Modified as to militia by amendment. 

2 The states were, as we have seen, forbidden to lay duties on imports 
or exports except such duties as they might lay in connection with their 
inspection law. It has never been the practice of our states to avail them- 
selves of this privilege, because all money so raised must be paid into the 
treasury of the United States. 



THE AMERICAN FEDERAL SYSTEM 53 

and Fifteenth amendments, which were adopted as a result The Thir- 

of the Civil War. The Thirteenth Amendment simply !f®^l^' ,^ 

Fourteenth, 

forbids slavery throughout the territory of the United andFif- 

States. The Fifteenth Amendment provides that no *®®^*^ 

• 1 1 11 1 T amendments 

Citizen of the United States shall be denied the right to 

vote on account of race, color, or previous condition of 
servitude. While these were severe limitations on the 
power of the individual states, as they had enjoyed it 
up to that time, they are simple enough to be understood 
without particular comment. The Fourteenth Amend- 
ment defines the term ''citizen" of the United States, 
and then forbids the states to deprive any person of life, 
liberty, or property without due process of law. In most 
of the state constitutions there were already similar limi- 
tations on the state governments. The significant thing 
about the inclusion of this language in the Fourteenth 
Amendment is that it gives to the United States courts 
the power to hold unconstitutional any law or constitu- 
tional provision of any state in violation of the terms of 
the amendment.^ 

The framers of the Constitution gave little heed to the Nature of 
nature of the union they were creating. In so far as they *^® ^raon 
considered the question at all, they probably thought 
they were dividing sovereignty between the states and 
the United States. It was not until an issue of sec- 
tional character arose that the subject came to be seriously 
discussed. 

Early in the administration of John Adams, as a result Doctrine of 
of the bitterness of party strife growing out of our relations nullification 
with France, the Federalist Congress passed the Alien 
and Sedition Acts. They led to the famous Virginia 
and Kentucky Resolutions, which set forth the view that 

^ The other aspects of the Fourteenth Amendment are discussed in a later 
chapter. 



54 THE BACKGROUND OF AMERICAN GOVERNMENT 

an act of Congress in excess of its powers might be de- 
clared to be of no effect by the legislature of any state. 
The Federalists, on the other hand, contended that the 
Constitution provided the Supreme Court as the sole 
instrument for limiting the unconstitutional activity 
of Congress. The repeal of the Alien and Sedition Laws 
temporarily allayed this difficulty. It broke out again, 
however, at the time of the War of 1812, to which the 
New England states were bitterly opposed. Being in 
the minority, they saw no hope of help from Congress. 
It is not surprising, therefore, that at the famous Hart- 
ford Convention delegates from the New England states 
should have adopted resolutions declaring the right of the 
individual states to nullify acts of Congress. The doc- 
trine was next brought forward by the people of South 
CaroHna in 1830. They found themselves suffering from 
economic depression which they ascribed to the tariff of 
1828. Being in the minority, they sought redress by 
nullifying the tariff within their borders. The intro- 
duction into Congress of a compromise tariff afforded a 
momentary escape from the issue. 
The theory John C. Calhoun was the greatest exponent of the 
cJb^n' "states rights" theory of the Constitution. He defended 
first the right of nullification, and later that of secession. 
While he never advocated the latter, his arguments as 
to its constitutional justifiability had a great deal to do 
with the willingness of the Southern states to take the 
step in 1 86 1. It must be remembered that the Southern 
states, primarily interested in agriculture, found them- 
selves increasingly outnumbered in the councils of the 
nation. They were thus forced to fall back upon some 
doctrine that would give to the individual states a 
veto upon the hostile policy of the central government. 
This doctrine Calhoun put into the clearest and most 



THE AMERICAN FEDERAL SYSTEM 55 

systematic shape. He argued strongly against the 
tyranny of the majority. "All constitutional govern- 
ments," he said, "take the sense of the minority by its 
parts, each through its appropriate organ." He further 
contended that each interest or portion of the minority 
should have a negative on the others. Applying this 
to the American constitutional system, he advocated 
the doctrine of nullification. Calhoun further stated 
very emphatically that in its very nature sovereignty, 
or supreme power, is indivisible, and that there cannot 
be two sovereign authorities in the same state. The 
states, he argued, had been originally sovereign, and 
had never yielded any of their sovereignty. The central 
government was simply an agency created by the states 
for the purpose of exercising certain powers. The sover- 
eign states which created this agency might at any time 
withdraw from it. 

The nationalist theory of the union found a champion The nation- 
in Daniel Webster. He took the language of the pre- ^fj^f ^**^ 
amble of the Constitution itself, which declares, "We, union 
the people of the United States, ... do ordain and 
estabhsh this Constitution for the United States of 
America," and contended that this meant the people of 
the whole union, and not of the individual states. Ac- 
cording to this theory the Constitution was not formed 
by the sovereign states, but was an organic union created 
by a higher authority, the people of all the states. Abra- 
ham Lincoln, and later the United States Supreme Court 
in the case of Texas vs. White, took the view that the 
states had never been sovereign because before they had 
come out from under the sovereignty of Great Britain 
they had already been subject to the sovereign power of 
Congress. This may be true so far as the Continental 
Congress is concerned. It was, however, not true under 



56 THE BACKGROUND OF AMERICAN GOVERNMENT 

the Articles of Confederation, which was clearly a union 
of sovereign states. 

The Constitution, however, actually did create a sys- 
tem which was incompatible with the state sovereignty. 
The power of the Supreme Court, frequently exercised, 
to hold state statutes unconstitutional, was quite incon- 
sistent with the theory of Calhoun. Early in the history 
of the Constitution certain states, notably Pennsylvania 
and Virginia, attempted to pass laws to prevent the 
exercise of the judicial power of the United States within 
their limits, Virginia even going so far as to forbid her 
citizens to avail themselves of the privileges of the United 
States courts. The Supreme Court of the United States, 
however, successfully asserted its power. Under the 
terms of the Judiciary Act to which we have referred, 
it successfully removed cases from the courts of Virginia 
and decided them itself. The whole matter was settled 
by the Civil War, and while writers still spin some pretty 
fine theories as to just where sovereignty is located in the 
United States, it is certain that it is not located in the 
states. We have, as the Supreme Court said in Texas vs. 
White, ''an indestructible union of indestructible states." ^ 

SUGGESTIONS FOR FURTHER STUDY 

The best book dealing in fairly simple terms with the subject of 
this chapter is Willoughby, W. W., The American Constitutional 
System. Reference may be made to Beard, chs. viii and xiii. 

1 It may be convenient to adopt the distinction between " political 
sovereignty " and " legal sovereignty." The former, which means the ul- 
timate source of authority in the state, is possessed by the people of the 
United States. "Legal sovereignty," which is deiined as the power of 
lawmaking without legal limit, rests with that authority which could 
amend freely the Constitution of the United States. This authority is 
either two thirds of both houses of Congress and the legislatures of three 
fourths of the states, or the legislatures of three fourths of the states alone,^ 
two thirds of the state legislatures being able to force Congress to propose 
an amendment. 



THE AMERICAN FEDERAL SYSTEM 57 

Merriam, C. E., American Political Theories, pp. 252-304, gives a 
good account of the theories of Calhoun and his opponents. The 
words of Calhoun himself may be found in his Disquisition on Gov- 
ernment and Discourse on the Constitution and Government of the 
United States. (See vol. i of Cralle's edition of his works.) Web- 
ster's Reply to Calhoun appears in his works, vol. iv, pp. 500-522. 
The Southern attitude is also clearly expressed in Stephens, Alex- 
ander H., A Constitutional View of the War between the States. 
The view of Burgess, J. W., one of our greatest political thinkers, is 
found in his Political Science and Constitutional Law, vol. i, pp. 104- 
108. The Virginia and Kentucky Resolutions and the South Carolina 
Ordinances of Nullification and Secession are interesting exhibits 
in this connection. They may be found in Macdonald, W., Select 
Documents Illustrative of the History of the United States, pp. 148-160, 
268-271, and 441-442. 

The opinions of Jefferson and Hamilton on the constitutionality 
of a national bank may be found in Macdonald, Select Documents, 
pp. 76-98. 

For the use of teachers the following cases decided by the United 
States Supreme Court are cited. They may all be found in such 
collections of cases on constitutional law as that of J. B. Thayer. 

Power of United States finally to apply United States Consti- 
tution and laws as against conflicting state constitutions and laws : 
United States vs. Peters, 5 Cranch 115; Fletcher vs. Peek, 6 
Cranch 86; McCulloch vs. Maryland, 4 Wheaton 316; Martin vs. 
Hunter's Lessee, i Wheaton 304; Cohens vs. Virginia, 6 Wheaton 
264. 

Doctrine of implied powers : United States vs. Fisher, 2 Cranch 
358; McCulloch vs. Maryland, 4 Wheaton 316. 

Interstate Commerce : Gibbons vs. Ogden, 9 Wheaton i ; License 
Cases, 5 Howard 504 ; Passenger Cases, 7 Howard 283 ; Bowman 
vs. Ry. Co., 125 U, S. 465, 

The use of good treatises on constitutional law, such as those of 
Willoughby, Story, Cooley, and others, is recommended. 

This chapter should be made the occasion of a thorough drill on 
the Constitution of the United States. Students may be asked to 
report in writing on topics like the following : 

Topics : 

Doctrine of Implied Powers. 

Taxing Power of Congress (see Chapter XXXI). 



58 THE BACKGROUND OF AMERICAN GOVERNMENT 

Commerce Power of Congress. 
Military Power of Congress. 
Limitations on the Power of Congress. 
The Bill of Rights. 
Limitations on the States. 

Limitations on the States by the Fourteenth Amendment. 
Power of the Courts. 

The Webster, Calhoun, and Supreme Court theories of the union 
may be each assigned to a student to report on. 



PART II 
PARTIES AND ELECTIONS 



CHAPTER V 

THE PLACE OF POLITICAL PARTIES IN MODERN 
GOVERNMENT 

George Washington in his Farewell Address solemnly The bad 
warned his countrymen against the dangers of partisan- f^af parti^^s' 
ship. There are still many persons who profess to see 
in the activity of political parties the cause of much of 
the misgovernment which troubles our country today. 
There has been a good deal in the history of parties be- 
fore and since the days of Washington to justify these 
views. Before Washington's time, parties had frequently 
signalized their victories by banishing their opponents and 
confiscating their property. The victories themselves 
had been won by violence or fraud, and out of the dis- 
turbed conditions produced by party struggles there had 
usually come some bold spirit to make himself master on 
the ruins of popular liberty. Since the time of Washing- 
ton we have had many corrupt political parties, and while 
banishments and confiscations no longer take place, the 
so-called ''spoils" of ofhce and the opportunities for per- 
sonal profit from public enterprises have furnished a 
stimulus for selfish men to be active in their affairs. 

Political parties, however, are absolutely necessary in Political 
the conduct of modern government. In the first place, avoidaWe" 
they are unavoidable. Men always have differed and 
always will differ in their opinions with regard to pubKc 
questions. Interest, prejudice, ignorance, and even virtue 
and public spirit help to make it impossible for all men to 
agree. Our fur-clad ancestors, clustering around the 
council fire and falhng into dispute over the division of 

6i 



62 



PARTIES AND ELECTIONS 



Political 
parties nec- 
essary in a 
democracy 



Evolution 
of the 
two-party 
system 



the spoils taken from the enemy, were laying the founda- 
tion of the modern political party; for there is not only 
a tendency for men to differ, but there is a tendency for 
men to agree, and to fall into groups for the purpose of 
giving greater effect to their opinions. It would be no 
easier or harder to abolish political parties than to abolish 
the wind or the tide. 

One of the great critics of democracy. Sir Henry Sumner 
Maine, asked this very pertinent question: "How can 
a democracy make up its mind?" It obviously cannot 
make up its mind like an individual. It is incapable of 
originating any idea. It can only approve or disapprove 
of the ideas suggested to it by individuals. If President 
Wilson says, "Let us lower the tariff," the people may, 
by electing him to office, express their approval of this 
poHcy. They could not, however, have originated it 
apart from the suggestion of some individual. If a 
democracy is to work at all, there must be some mechan- 
ism by which it may express its approval or disapproval 
of men or measures. This might be done in the case of 
questions of policy, by submitting them directly to popu- 
lar vote, but, as we shall see, this method cannot be 
applied except to a comparatively few matters. It does 
not at all solve the problem of the election of officers 
agreeable to the people, for the purpose of carrying on the 
government. To do this, pohtical parties are necessary. 

Elihu Root, in his little book called The CUizen^s Part 
in Government, suggests a very fine illustration of the truth 
of the last statement. Let us suppose that in your state 
there were no political parties and that each voter went 
to the polls and voted simply for the man of all men in 
the state whom he considered best fitted to be governor. 
It is clear that the number of persons voted for would 
be very large. Even if, by some chance, one candidate 



POLITICAL PARTIES IN MODERN GOVERNMENT 63 

had received a plurality, — that is, more votes than any 
other single candidate, — his vote would still be micro- 
scopically small in proportion to the total number of 
votes cast. It is probable that the great majority of 
citizens would have preferred some one else to the man 
elected under this system. It would be impossible for 
him to claim that he represented the people and there 
would be no assurance that his policies would meet with 
their approval. In other words, the very purpose of 
democracy would have been defeated. Now one way 
that such a result can be avoided is by those persons who 
hold views in common clubbing together to support a 
particular candidate pledged to their views. As soon 
as that is done, we have a political party. To carry on 
our illustration, before the next election, men interested 
in certain lines of business or holding certain opinions as 
to how the state should be run, would get together and 
determine upon the person to whom their votes for gover- 
nor should go. Naturally a candidate of some one of 
these groups would be elected. The third election would 
see group merging with group ; men giving up some part 
of their opinions for the sake of more nearly getting those 
things which they deem essential. This process would 
go on until there were only two political parties. When 
this stage of development has been reached, a candidate 
of one of the parties may express the general ideas of a 
majority of the people. Therefore we may say that not 
only are parties necessary to the operation of a democratic 
government, but that, for English-speaking countries at 
any rate, there will be normally but two great political 
parties.^ 

1 It is only in Anglo-Saxon countries that the two-party system exists. 
The difficulties, however, which are experienced on the continent of Europe, 
where parties are numerous, help to establish the rule laid down in the 
text. 



64 PARTIES AND ELECTIONS 

Exceptions This does not mean that there are no other parties. 

Bart ^njle" There are at all times comparatively small groups of per- 
sons holding particular views which they consider to be 
of primary importance, who will not unite with either of 
the great political parties. There have been a succession 
of such parties in the United States : The Anti-Masonic 
party of the thirties ; the Know-nothing or Anti-Foreign 
party of the early fifties; the Greenback party, the 
Populist party, and the Prohibition party of more recent 
times. Another party not yet entitled to be called one 
of the great political parties, but of enormous influence 
in the United States, is the Socialist party. At certain, 
times the old parties tend to break up and new organiza- 
tions take their place. It is then not unusual to find for a 
brief space more than two parties fairly evenly dividing the 
sentiment of the country. . In the period when the new 
Republican party in the presidential election of 1856 was 
forming, there were three parties : Democrats, Whigs, 
and Republicans. In i860 there were four parties : Repub- 
licans, the Union Party of Bell and Everett, and Northern 
and Southern Democrats. In the election of 191 2 three 
parties contested on something like even terms for the 
presidency: Democrats, Republicans, and Progressives. 
The tendency, however, is to get back pretty promptly 
to the two-party basis. The new party either absorbs 
the old, as the Republicans absorbed the Northern Whigs, 
or is itself absorbed by one of the old parties. 

If parties are, as we have seen, unavoidable and indis- 
pensable, no matter what defects may appear in their 
operation, they cannot of themselves be regarded as either 
good or bad. They are to be looked upon as is any other 
necessary mechanism of government, a legislature, for 
example. If they seem to be turning out bad results, 
the proper course is to endeavor to discover and remove 



POLITICAL PARTIES IN MODERN GOVERNMENT 6$ 

the cause of the evil, and not to rail at the institution The citizen's 
itself. It would seem to be preferable, then, for a public- °''"sations 
spirited citizen to become a member of a political party parties 
and by his active participation in it help to prevent 
abuses. 

In joining a political party, a good citizen should be 
willing to give up some of his opinions for the sake of 
cooperating with others in securing the adoption of his 
general ideas. The person who will never yield a jot 
of his views is doomed to be frequently disappointed 
from the lack of disposition on the part of the rest of man- 
kind to conform to his opinions. ' If, as we have seen, 
the two-party system is normally necessary to secure the 
decisive expression of the popular will, there must be a 
good deal of holding back of individual views for the sake 
of agreement upon substantials. No citizen, however, 
should continue to vote for a party when that party has 
ceased to represent him on matters which he considers 
to be of vital importance. One of the chief reasons for 
the corruption that has existed in political parties has 
been the knowledge of the party leaders that the party 
followers would vote the ticket no matter who was nomi- 
nated. It is natural for men who have been associated 
in a party to set up the party as their ideal instead of the 
things the party was intended to bring to pass. Thus a 
party organization has a tremendous momentum which 
keeps it going long after the original motive forces have 
ceased to operate. Every citizen should try to do his 
part to keep parties genuine and to hold them true to 
principle. Parties are the means and not the end of polit- 
ical activity. The man who supports his party, right 
or wrong, is a traitor to his country. 



66 PARTIES AND ELECTIONS 



SUGGESTIONS FOR FURTHER STUDY 

There is very little material available on the subject of this 
chapter. It is mostly scattered in fragments too minute for ref- 
erence work. The views of the writer are more fully set forth 
in his Government for the People,^ pp. 28-48. Root, Elihu, The 
Citizen's Part in Government, pp. 32-92, discusses the relation of the 
individual to party, as do Hughes, C. E., Conditions of Progress in 
Democratic Government, and Bryce, James, Hindrances to Good 
Citizenship, pp. 75-104. Macy, Jesse, Political Parties in the United 
States, pp. 1-22, and Ray, P. O., Introduction to Political Parties and 
Practical Politics,^ pp. 3-14, cover much the same ground as this 
chapter. Jones, C. L., Readings on Parties and Elections, pp. 28-37, 
gives extracts from Madison and Washington, showing early fear 
of parties. Wilson, Woodrow, Constitutional Government in the 
United States, pp. 203 ff., shows how inevitable . parties are in this 
country. 

For teachers' material consult also Lowell, A. L., Government of 
England, vol. i, pp. 435-447 ; Maine, Sir Henry Sumner, Popular 
Government (essay on the Nature of Democracy) ; Bryce, James, 
American Commonwealth^ chs. Ixxvi-lxxxvii. 

Topics : 

A debate or discussion on the question, "Resolved, That each 
new voter should ally himself with a political party," will serve 
to fix the point of this chapter in the minds of the students. 

1 Hereafter cited as Reed. 

2 Hereafter cited as Ray. 

3 Hereafter cited as Bryce. 



CHAPTER VI 

THE HISTORY OF POLITICAL PARTIES IN THE UNITED 

STATES 

The history of political parties in the United States Colonial 
begins in those differences with regard to matters of trade p°^<^^ 
regulation and taxation which soon after the middle of 
the eighteenth century began to vex the relations between 
England and her North American colonies. The basis 
of party division was the question as to whether loyalty 
to king or loyalty to country should come first. Those 
who held the former view were largely the well-to-do 
people of the colonies; those who adhered to the latter 
were of smaller wealth and less exalted station. The 
division was essentially like that which existed in Eng- 
land at the same time between the Tories, or prerogative 
men, who were partisans of the crown, and the Whigs, 
who asserted against the crown the various limitations of 
the British constitution. The names of these parties 
were brought over to America and applied to their colonial 
counterparts. 

The war of the Revolution destroyed the Tories as a Political 
party. It was not long, however, before the people began ^f^^^^o^Jon 
again to divide into parties, upon a similar basis. There of the Con- 
were two main divisions of the American people. On stitution 
the one hand, there was the commercial class of New 
England and New York, with their natural social and 
political allies, the aristocratic landowners of the states 
farther to the south. This class possessed most of the 
wealth of the country. It was the class of creditors. 
Their interests demanded peace and order, the collection 

67 



68 



PARTIES AND ELECTIONS 



The Fed- . 
eralist and 
Republican 
parties 



of private debts in full, payment of national and state 
debts, and, in general, conditions under which they might 
employ their capital to advantage. On the other hand, 
there were the small farmers and frontiersmen, a class 
numerically greater. As might be expected, they suffered 
most keenly from the awful ravages of war. While this 
class was sure to benefit by orderly conditions under 
which industry and commerce might again prosper, 
they felt that it would be only justice to spare them the 
full payment of their debts and were ready to try any 
new methods in government or finance that held out any 
prospect of relief. 

The first class wanted above all things a strong gov- 
ernment; the latter, a popular government. The early 
state constitutions, with their concentration of power in 
the legislature, enabled the popular party to get control 
of the machinery of state government and adopt a number 
of radical laws. Despairing of the too popular character 
of state government, the first class came to demand a 
strong central government for the federation. The popu- 
lar party, more nearly satisfied with the existing arrange- 
ment, insisted emphatically upon the preservation of the 
liberties of the states. The Constitution of the United 
States was, as we have seen, framed almost altogether by 
members of the aristocratic and wealthy class and it fairly 
represented their ideal in government. It was ratified 
largely because many of the popular party preferred an 
undemocratic constitution to none. 

Washington was elected as the first President of the 
United States by unanimous consent. No sooner, how- 
ever, had the new government got under way than dis- 
agreements along the lines we have just been discussing 
broke out between Thomas Jefferson, Secretary of State, 
and Alexander Hamilton, Secretary of the Treasury. 



HISTORY OF POLITICAL PARTIES 69 

Hamilton represented the aristocratic, commercial class 
which had framed the Constitution. He was anxious 
to establish firmly the power of the central government, 
and to that end sought to interpret broadly the powers 
given to the central government by the Constitution. 
Jefferson, on the other hand, was a believer in democracy 
and favored the power of the states as against the nation. 
We have already seen how they differed with regard to 
the creation of a national bank. The breach between 
Hamilton and Jefferson and between their followers in 
Congress grew constantly wider. Hamilton's partisans 
were known as ''Federalists," and those of Jefferson as 
"Republicans." Ultimately Washington was drawn into 
the controversy and, siding with Hamilton, made his 
administration completely Federalist. When Washing- 
ton had made clear his intention finally to bid farewell 
to public life, a vigorous contest began as to who should 
be his successor. The prestige of Washington's adminis- 
tration was sufficient to secure the election of the Federal- 
ist candidate, John Adams. Repubhcan political ideas, 
however, were naturally more popular than those of the 
Federahsts, and after the election of Jefferson in 1801 
the Federahsts gradually passed out of existence. From 
that time until 1824 there was one dominant national party 
in the United States. 

In the meantime a new movement which was to restore The Demo- 
the two-party system had begun on the western frontiers. JJ^^^j^^^*^ 
This was the great democratic movement which intro- Republican 
duced universal white male suffrage into practically P*^®^ 
every state constitution. It came from the West, where 
conditions made for equahty between man and man, and 
it rapidly spread over the country. These new Democrats 
were far more radical than Jefferson. They believed that 
Congress, and especially the congressional caucus which 



70 PARTIES AND ELECTIONS 

named the candidate for President, represented wealth 
and aristocracy. They conceived the government to be 
in the grip of the money power. They assailed with bitter 
fury the gentlemen of family and estate, who were the 
political leaders for the time being. 

The new movement found an adequate chieftain in 
Andrew Jackson, the victor of New Orleans, or, as he was 
popularly known, ^'Old Hickory." Jackson was a man 
of ignorance, intense prejudices, narrow views. He was, 
however, a typical product of the frontier. He was brave, 
vigorous, loyal to his friends, and had unswerving faith 
in the right and ability of the people to govern themselves. 
After 1824 the Jackson men assumed the name of "Demo- 
crats." They rapidly increased in numbers and in 1828 
won an overwhelming victory which placed them in full 
control of the government. This new party held the 
then astounding doctrine that a majority of the people 
had a right to control, immediately, by virtue of the 
simple fact of that majority. They stood for the same 
narrow interpretation of the Constitution which had 
been the underlying principle of the Jeffersonian party. 
It was in furtherance of this idea that they abolished 
the Bank of the United States. Their opponents, the 
more conservative element of the old Republican party, 
had first united on the basis of hostility to Jackson. They 
soon, however, crystallized into the National Repubhcan 
party, which adopted the old Federahst principle of a 
wide exercise of national powers and the new principle 
of protection of American industry by high tariff duties. 
The Whig In 1834 the Whig party was formed of the National 

party Republicans and a portion of the Southern Democrats 

who looked askance at Jackson's anti-states-rights views. 
The party was always divided between a Northern and 
a Southern Whig and it never possessed any genuine sol- 



HISTORY OF POLITICAL PARTIES 71 

idarity. Its members were divided, not only on states 
rights and slavery, but on the tariff, the bank, and almost 
every issue of the day. One must speak very generally 
indeed to say that it was in any sense the successor of 
the Federalist party. 

From 1836 to 1852 the Whigs and Democrats fought for Rise of 
the control of public offices throughout the country. In ? ^^^^^ 
the meantime a new issue, on which neither party dared to 
take a definite stand, became the vital question before the 
American people. This was the issue of human slavery. 
The early abolitionists were uncompromising, and, be- 
lieving that the Constitution was a " covenant with hell,'* 
would take no active part in politics. The fact that the 
Constitution clearly protected slavery within the states 
prevented abolition from becoming a direct issue between 
political parties. So far as the anti-slavery movement 
was political, it was directed against the extension of 
slavery through the territories. Finally, in 1854, the 
Northern Whigs, who were opposed to the adoption of 
the Kansas-Nebraska Bill, definitely separated from the 
Southern wing of their party and took the name of the 
"Anti-Nebraska Men," which was soon changed to that 
of "Republican." The Republican party, which held 
its first national convention in 1856, kept the old Feder- 
alist and National Republican doctrines of a broad con- 
struction of the Constitution, and the protective tariff. 
They added the principle of opposition to the extension 
of slavery in the territories. 

The Republican party triumphed in i860 through the The Repub- 
division of the Democrats, and the secession of the ^^" ^ ^ 
Southern states left it in complete control of the govern- 
ment. The attitude of a portion of the Northern Demo- 
crats during the war, and the fact that the bulk of the 
party came from the seceding states, practically con- 



72 PARTIES AND ELECTIONS 

demned the Democratic party to absence from power 
until war-time memories had begun to subside. About 
that time the unfortunate attitude of the Democrats on 
the money question closed the gates of power to the party 
for another period. From 1861 to 19 13 the Republican 
party was in constant control of the government, except 
for the eight years when Grover Cleveland was President. 
There were only two years of these eight in which the 
Democrats controlled at once the presidency and both 
houses of Congress. 

The Republicans have remained strictly a sectional party. 
They have never had any foothold in the Southern states. 
After the elimination of the negro voter, almost the only 
Republicans in the South have been the holders of federal 
offices, or the few who are ambitious to secure them. The 
party has remained true to its National Republican and 
Federalist ancestors in continuing to believe in the broad 
exercise of the powers of the central government. It has 
stood steadfastly upon the principle of protection. In 
1896 it became the party of "sound" money. In general, 
it represents the economic views of the capitalist class. 
It adheres strongly to the traditional belief in the check- 
and-balance system of government, following closely the 
framers of the Constitution in this respect. It stands for 
the retention of our sovereignty over the Philippine Is- 
lands and a policy of active effort wherever our interests 
are affected abroad. On all matters of domestic policy, 
while being ready to acquiesce in reforms, it is distinctly 
a conservative party. 
The Demo- It is not SO easy to describe the principles of the Demo- 
cratic party cratic party. The same reason which has kept the 
RepubUcan party out of the South has made the Demo- 
cratic party the only party in that section of the country. 
Men in the South are not Democrats by reason of their 



HISTORY OF POLITICAL PARTIES 73 

political beliefs, but because of their color and social 
opinions. The Democratic national convention of 1896 
was captured by Wilham Jennings Bryan, the leader of 
a great popular movement originating in the agricultural 
sections of the country and directed against the domi- 
nance of the money power. It aimed, much as the old 
Jacksonian Democracy had done, to put the government 
more under the control and at the service of the people. 
Mr. Bryan proposed the free and unhmited coinage of 
silver at the then legal ratio of sixteen to one, in the hope 
that more money in circulation would relieve the distress 
of the Western and Southern farmers. On this issue he 
was overwhelmingly defeated in 1896 and 1900. In 1904 
the conservative element of the Democratic party again 
asserted itself, but went down to defeat before the tre- 
mendous popularity of Theodore Roosevelt. In 1908 
Mr. Bryan was defeated for the third time. 

In 191 2 he once more dominated the Democratic na- 
tional convention and this time secured the nomination 
of Woodrow Wilson for the presidency upon a progressive 
platform. The progressive wing of the Democratic party, 
led by President Wilson, believes in a tariff for revenue 
only ; in a strict enforcement of the present laws against 
the so-called "trusts"; in more stringent laws if neces- 
sary to prevent monopoly ; in currency reforms to prevent 
panics by obliging national banks to keep their reserves 
in certain regional national reserve banks instead of in 
New York ; in presidential primaries ; and in such devices 
as the initiative, referendum, and recall. It favors also, 
in general, remedial legislation for the more crying social 
and economic evils of the day. The conservative wing of 
the Democratic party, which includes the dominant 
faction in most of the Southern states and such powerful 
organizations as Tammany Hall in New York, is ready 



74 PARTIES AND ELECTIONS 

to leave the economic and social conditions much as they 
are. Witness, for example, the opposition in certain 
Southern states to child-labor legislation. It is opposed 
to such innovations in the machinery of government as 
the initiative, referendum, and recall. Both wings of the 
Democratic party hold to the old strict-construction view 
of Jefferson with regard to the relations of the states and 
the central government. It is to be remembered, how- 
ever, that what is now regarded as consistent with strict 
construction, such as a Mississippi Valley waterway, would 
have required too much loosening of the Constitution 
for even the stoutest Federalist of a century ago. 
The The Progressive party had its origin in a great body of 

rogressives pj-Qgressive sentiment which was built up within the 
Republican ranks under the leadership of Theodore 
Roosevelt, Senator La FoUette, and others. It spht 
from the RepubHcan party at the Chicago convention of 
191 2, because it beheved that it had been defrauded by 
the national committee and the Southern office holders 
in the convention of its right to nominate Mr. Roosevelt. 
The Progressives, at their convention in 191 2, nominated 
Mr. Roosevelt for President, and Hiram W. Johnson for 
Vice-President, and adopted a platform, or "covenant 
with the people," specifically stating their adherence to 
a very advanced program. It included the initiative, 
referendum, and recall, woman suffrage, government 
regulation of the trusts by an administrative department 
similar to the present Interstate Commerce Commission, 
prohibition of child labor and of night work for women, 
reduction of the tariff, and in a wide variety of measures 
for the betterment of the social conditions of the people. 
It proposed to use all the powers granted by the Con- 
stitution, and when these were exhausted to amend the 
Constitution so as effectively to care for, by national 



HISTORY OF POLITICAL PARTIES 75 

action, those problems which have grown too big for the 
state. 

The SociaHst party holds that the government should The Social- 
own all the instruments of production and distribution. ^^* ^^-^^ 
This does not necessarily mean all property. Most 
Socialists believe that it would be desirable to permit 
persons to accumulate private property, and have their 
own homes and household goods. The Socialist party 
has always advocated woman suffrage and other reforms 
intended to give the people more complete control of the 
government. They are opposed to the maintenance of an 
army or navy. They have always from time to time ad- 
vocated concrete reforms similar to those included in the 
Progressive platform. The Progressive is like the Socialist 
in fully recognizing the evils of the present day. He differs 
from the Socialist in believing that they can be corrected 
by concrete measures of reform, while preserving the 
essential features of our present order. It is worth ob- 
serving that our conservatives are not as conservative 
as they once were. The net result of the progressive 
movement in both the Democratic and Republican parties 
has been to make all factions of all parties more pro- 
gressive than could have been believed possible a few years 
ago. In this sense, whatever may be the party forms of 
the future, the progressive movement has been a great 
success. 

The great issues of the election of 19 16 were the result Parties in 
of the European war and related to questions of foreign '^^^ 
policy and preparedness. Mr. Roosevelt, again renomi- 
nated by the Progressives, declined to be a candidate, 
and the great body of Progressives went back to their 
original Republican allegiance. The mighty cohesive force 
of great political parties was never better illustrated. It 
is worthy of remark that a party can have the enthusiastic 



76 PARTIES AND ELECTIONS 

support of men of such divergent views as Wilson and 
Bryan. On the other side of the contest hostihty to the 
Wilson policies regarding Europe, Mexico, and military 
preparedness united vast numbers of men who in 191 2 
were intensely hostile. 
The future It may be confidently prophesied that we shall re- 
tain the two-party system. By what combinations this 
will be effected, no one can tell. It is absurd to sup- 
pose, however, that we shall go on having parties 
whose only reason for existence lies in differences long 
ago settled. It is possible to see in the history of poHt- 
ical parties in the United States a regular development : 
parties originate in strong popular movements; are 
carried by them to victory ; lose their popular character ; 
grow more conservative, until a new popular movement 
sweeps them from the field. Republican radical replaced 
FederaHst conservative. Democratic radical replaced Re- 
publican grown conservative. Republican radical ousted 
Democrat ''standing pat" on slavery. From all the facts 
of the situation, each person is entitled to build his own 
prophecies for the future. 

SUGGESTIONS FOR FURTHER STUDY 

An excellent brief review of this subject will be found in Beard, 
pp. 99-125. Bryce, chs. liii-lvi, gives a fuller but less up-to- 
date treatment. Ray, pp. 15-73, gives a good account of existing 
parties, with ample bibliography. Beard, C. A., Contemporary 
American History, will prove invaluable. See also his Readings, pp. 
92-1 1 1. Every class should be able to consult Johnston, Alexander, 
American Politics, the best brief manual of our political history ever 
prepared. 

For more advanced students, Woodburn, J. A., Political Parties 
and Party Problems, wiU be useful in connection with this and suc- 
ceeding chapters. Macy, Jesse, Political Parties in the United States, 
deals with the period from 1846-1861. Ford, H. J., Rise and Growth 
of American Politics, is very readable and suggestive. Stanwood, E., 



HISTORY OF POLITICAL PARTIES 77 

History of the Presidency and A History of the Presidency from i8q7 
to 190Q, gives very clear accounts of the political issues of each elec- 
tion. Duncan-Clark, S. J., The Progressive Movement, is the most 
elaborate statement of the political principles of that party. There 
are numbers of party histories which contain much valuable mate- 
rial. The platforms of all parties from the beginning to 1905 are to 
be found in McKee, T. H., The National Conventions and Platforms 
of All Political Parties, 6th edition. 

Topics : 

The various party movements from the organization of th& 
colonial Whigs by Samuel Adams to the present time may be 
assigned to students for investigation and report. Especially 
important will be reports on the principles of the existing parties. 



CHAPTER VII 



NOMINATION AND ELECTION MACHINERY 



Colonial 
experience 



The legisla- 
tive caucus 



In colonial elections viva voce voting was frequently 
employed, and where ballots were used, the simple pro- 
cess of writing the candidate's name on a piece of paper 
was all the formality necessary. There was no formal 
provision for the nomination of candidates. The suffrage 
was limited and the population small. A member or 
friend of one of the leading families of the district simply 
announced himself as a candidate, and, without other for- 
mality, ran for the office. The one great exception to 
this common practice of colonial times was the celebrated 
Boston "caucus," which consisted of a number of persons 
of patriotic views who got together and put their stamp 
of approval on candidates for office. Needless to say, 
their candidates were generally successful. This sim- 
plicity of nomination and election machinery continued 
for a long time in the Southern states, where political 
power was largely in the hands of the slave-holding 
aristocracy. In the other parts of the United States it 
soon disappeared under the influence of a variety of 
forces. 

The first of these forces was the fact that state officers, 
and in many instances presidential electors, had to be 
chosen at large from the whole state. It was very, im- 
portant to the growing political parties to which we have 
already referred, that there should be some method of 
determining who were the party candidates for these 
offices. What was more natural than that the candidates 
of each party should be nominated by the members of the 

78 



NOMINATION AND ELECTION MACHINERY 79 

legislature who happened to belong to that party? As 
time went on, it became clear that those districts the 
members from which belonged to the opposing political 
party ought to be represented in the choice of candidates. 
They therefore were represented by delegates especially 
elected for that purpose. The next step was the election 
from all districts of delegates to a convention for the pur- 
pose of making nominations. This system of conventions 
became about 1830 the usual method of making nomina- 
tions and remained so until after the beginning of the 
twentieth century. 

While these changes had been going on in state poHtics, The rise of 
a similar change had taken place in national affairs. *^^^''e*^o'|f 
Washington had been nominated and elected President by 
practically unanimous consent, and although Adams was 
not the unanimous choice of the FederaHsts, he was elected 
without any formal nomination. In 1800, however, both 
the Federahst and Repubhcan members of Congress met 
in secret caucus and nominated candidates for President 
of the United States. In 1804, the Federahst party 
being in a hopeless minority outside of New England, the 
Repubhcan members of Congress met pubhcly and with 
all f ormahty nominated their candidate for the presidency. 
This method of nomination continued down to and in- 
cluding the election of 1824. It became, however, very 
unpopular. There being but one party in the field, nomi- 
nation by it was tantamount to election, and it appeared 
that the members of Congress had practically usurped 
the power which the Federal Constitution had been careful 
to deny them, of selecting the President of the United 
States. The caucus candidate of 1824 ran fourth in the 
race, and no attempt was ever made again to nominate 
candidates by this method. Candidates in 1828 were 
nominated ''hit or miss" by state conventions and state 



So 



PARTIES AND ELECTIONS 



The heyday 
of the 
convention 
system 



legislatures. Before the election of 1832, however, the 
national convention had come into being. It happened 
that a Free Mason in the state of New York, who had 
threatened to divulge the secrets of the order, disappeared. 
This aroused tremendous opposition to the Masonic fra- 
ternity, and an Anti-Masonic party grew up, which held 
a convention in Baltimore in 1831. The party disap- 
peared after the defeat of its candidates at the ensuing 
election. In 1832, however, the National Republicans 
and Democrats held national conventions for the purpose 
of nominating candidates. The weak and disorganized 
anti-Jacksonian party did not hold a convention prior 
to the election of 1836. Since that time, however, all 
candidates for the presidency have been nominated by 
national conventions. 

In theory, the method of nomination of party candidates 
by delegate conventions, representative of the party, is 
admirable. It was, indeed, infinitely superior to the 
system which had preceded it. In its heyday there was 
a regular hierarchy of conventions, from the assembly 
district or county conventions, through the congressional 
and state conventions, to the national conventions at the 
top. In general, the delegates to the higher conventions 
were chosen by those below. The whole system rested 
upon the ward, town, or precinct caucus, which was sup- 
posed to be an open assembly of all the local members of 
the party. In fact, however, as no legal protection was 
thrown around the action of this caucus, it came to be 
the scene of every species of fraud and even violence. 
There was no method of legally determining who had the 
right to participate in the caucus, which left this funda- 
mental matter to the arbitrary decision of the chairman 
or the party committee. These meetings became so un- 
pleasant, and they dealt with matters apparently so 



NOMINATION AND ELECTION MACHINERY 8 1 

trivial, that the great body of the citizens stayed away. 
They came to be manipulated by the self-constituted 
party leaders through ofhce holders. 

Up to the advent of Jackson to the presidency, there ^The spoils 
had been few removals from public office for political ^y^*®"* 
reasons except in the state of New York, where Van 
Buren had already gained great strength for the Demo- 
cratic machine by giving ofi&ces as a reward for political 
services. Jackson did not, as has often been charged, 
originate the practice of appointment and removal for 
political reasons in the Federal government, but under 
his administration it became general. An office holder 
who owed his position to his political activity and who 
knew that the success of his party was essential to his con- 
tinuing to hold it, made the most active kind of political 
supporter. A close second to him was the man who be- 
longed to the other political party and expected an office 
when his party should prove victorious. These numerous 
office holders and aspirants constituted the nucleus of the 
so-called political machines which were built up after 
1830. They controlled through their activities the 
caucus, and through the caucus they controlled the con- 
ventions. They were practically the only men who cared 
to attend the less important conventions, and they care- 
fully selected the men who attended the greater conven- 
tions. In the conduct of the conventions themselves 
there was, of course, often no limit to the shamelessness 
of fraud or even violence. 

While the various changes which we have been dis- Ballot 
cussing with regard to nominating machinery had been '® °'°^ 
taking place, some progress had been made in protecting 
elections from the effects of fraud and violence. Elabo- 
rate statutes directed against fraud or intimidation had 
been passed in all the states and had in some degree 



82 PARTIES AND ELECTIONS 

modified the audacity of politicians. The preparation of 
ballots, however, had continued to be a private matter. 
Each party prepared its hst of candidates, which were 
handed to the electors by party workers. Sometimes 
when party Unes were not clearly drawn, there would be 
several groupings of candidates offered. Independent 
candidates prepared and offered their own ballots, or 
distributed ''stickers," — gummed strips of paper, — 
which were to be pasted over the name of the correspond- 
ing candidate on the party ballot. Of course, under such 
a system secret voting was far from realized. A man 
might vote secretly if he wanted to, but the voter who 
had been bought could be watched to see that he ''de- 
livered the goods." It was thought by many persons 
that the excessive power of political machines was due 
The ^ to this system of balloting. With the twin hope, there- 
bailot fo^^) ^^ doing away with bribery and intimidation, and 

of striking a fatal blow at the machine, reformers every- 
where took up the cause of the so-called Australian ballot. 
It was adopted by Massachusetts in 1888, and the other 
states followed in rapid succession. Under this system 
the ballot was to be prepared by the secretary of state 
for state and national elections, or by the county clerk or 
some similar officer for local elections. It was to contain 
the name of each candidate, and each voter was to be 
given an opportunity in a booth out of sight not only of 
the "hangers-on," but of the election officers themselves, 
of indicating with a cross the candidates of his choice. 
He was to fold the ballot so that his choice should be 
indiscernible, and without unfolding, the ballot was to 
be placed in the ballot box. 

There have been almost as many variations in the actual 
form of the ballot as there are states in the Union. Two 
forms, however, may be taken as typical. The first of 



NOMINATION AND ELECTION MACHINERY 83 



To vote for a Person, mark a Cross X in the Square at w 
the right of the Party Name, or Political Designation. XV 



GOVERNOR Vote for ONE 



NELSON B. GLARK-OF BEVERLY 



^Progressive Party 



WALTER $. HUTCHINS-OF GREENFIELD 



Socialist 



SAMUEL W. McCALL-OF Winchester^ 



^Repubiican 



PETER O'ROURKE-OF hedford 



-Sociaiist Labor 



WILLIAIVI SHAW-OFANDOVEB- 



^Prohibition 



DAVID I. WALSH-OF 



^Democratic 



LIEUTENANT GOVERNOR Vote for ONE 



EDWARD P. BARRY-of 



Democratic 



CALVIN COOLIDGE-df Northampton 



Repubiican 



ALFRED H. EVANS-of hadley 



Prohibition 



JAIVIES HAYES-OF PLYHOUTH 



^Socialist Labor 



GHESTER R. LAWRENGE-of boston 



Progressive-Party Citizens 
Norn. Paper 



SAMUEL P. LEVENBERG-of 



^Sociaiist 



Section of Massachusetts ballot, to show arrangement of candidates' names 
imder titles of offices. 

these is the so-called Massachusetts ballot. In this 
ballot the names of candidates are arranged alphabet- 
ically or by lot under the title of the offices for which they 
are candidates. A voter must indicate his choice by a 
cross beside the name of each candidate for whom he 
intends to vote. The other typical form is the party- 
column ballot, in which the names of the candidates of 
the particular party for all offices are arranged in a column 
under the name of that party. Immediately under the 



Forms of 

Australian 

baUot 



84 



PARTIES AND ELECTIONS 



"TO VOTE A STRAIGHT TICKET, MAKE A CROSS-MARK ' X ' WITIKN 
THE CIRCLE ABOVE ONE OF THE PARTY COLUMNS 

ANY OTHER MARK THAN THE CROSS-MARK 'X' USED FOR THE 
PURPOSE OF VOTING WILL RENDER THIS BALLOT VOID. 

IF YOU TEAR, DEFACE, OR WRONGLY MARK THIS BALLOT, RE- 
TURN IT AND OBTAIN ANOTHER." 



o 

DEMOCRATIC 


O 

REPUBLICAN 


- 


UNITED STATES SENATOR 
SIMEON E BALDWIN 




UNITED STATES SENATOR 
FRANK B BRANDEGEE 


REFRESENTATIVE 124 CONGRESS 
JEREMIAH DONOVAN 




REPRESENTATIVE IN CONGRESS 
EBENEZER J HILL 




GOVERNOR 
LYMAN T TINGIER 




GOVERNOR 
MARCUS H HOLCOMB 




LIEUTENANT-GOVERNOR 
GEORGE M LANDERS 


^1 LIEUTEN^VNT-GOVERNOR 1 
1 CLIFFORD B WILSON 1 



Section of a party-column ballot. 

name of the party is a circle, and if the voter places his 
cross in that circle, he thereby votes for each candidate in 
the list. The voter may, if he so desires, vote for can- 
didates by putting a cross beside each name, but most 
voters seem to prefer to vote the straight party ticket. 
On both forms of the ballot blank spaces are left in which 
the voter may write the name of any person for whom he 
wishes to vote, whose name does not appear on the ballot. 
The advantage of the Massachusetts ballot is that it 
requires abiUty to read, and a certain degree of intelli- 
gence to vote it. Furthermore, it gives a reasonable 
encouragement to the voting of the "split" ticket. The 



NOMINATION AND ELECTION MACHINERY 8$ 

party-column ballot is easily votable by the most ignorant 
person, and it encourages consistent party voting, thereby 
making more certain the election of undesirable persons 
who may have been nominated for minor offices. Where 
machine conditions prevail, this means that the machine 
may dispose of these minor offices to strengthen itself 
without much fear of the people. The Massachusetts 
ballot is now being rather generally adopted. The adop- 
tion of the Australian ballot did away to a large extent 
with bribery and intimidation. 

Practically all of the states now require registration Registration 
as a condition precedent to voting. . Some states require 
registration every year or every two years. Other states 
provide for keeping names once registered on the voting 
list indefinitely. The registration is conducted by county, 
city, or town officers in accordance with specific require- 
ments of the particular state. It is usual to require a 
residence of thirty days prior to the election, in the pre- 
cinct, and of from three to six months in the county, and 
of a year in the state. Severe penalties are attached to 
the crime of registering falsely or voting under a name 
not one's own. 

The adoption of the Australian ballot ^ made it neces- Primary 
sary to have some method of definitely determining what '^^^o™* 
candidates had a right to have their names appear on the 

1 Some attempts at primary reform had preceded the Australian ballot. 
In 1866 California passed a law, which it was optional with any party to 
adopt, regulating the method of calling primary elections or caucuses and 
requiring that the supervisor of the election must be sworn to the faithful 
performance of his duties and giving the supervisor the right to examine 
prospective voters under oath. The act also declared voting by one not 
qualified and double voting to be misdemeanors. The same year a New 
York statute forbade "bribery, menace, or other corrupt means or device" 
in primaries or conventions. In the years following, several other states 
adopted similar laws. California again took the lead in 1874, with a law 
extending to the primaries of parties adopting the act all the protections 
then apphed to general elections. 



86 PARTIES AND ELECTIONS 

ballot as the nominees of the several parties. Thus the 
change in the form of ballot made necessary a closer 
supervision of nominating machinery. The Australian 
ballot laws provided for the placing of names on the ballot 
by petition, the number of signers required being usually 
rather large. This, however, made no provision for the 
selection of party candidates. It was, therefore, natural 
that the adoption of the Australian ballot was followed 
very rapidly by the adoption of laws throwing around the 
primaries the protection otherwise given to elections. 
This, however, did not prove sufficient. Conventions 
were still frequently manipulated by "wire-pulling" poli- 
ticians, and there was reason to despair of the people ever 
taking sufficient interest in the primaries so long as their 
one function was the selection of delegates to conventions. 
The way out was first clearly shown in the state-wide 
direct-primary law, adopted in Wisconsin in 1903. It was 
rapidly followed by similar laws in a majority of states. 
Even New York, after a prolonged struggle, granted this 
much needed reform in the closing days of 19 13. 
The direct Under the direct primary system the names of the 
primary candidates to be voted on at the primary of the particular 
party are placed on the ballot by petition of a certain pro- 
portion of the voters. This proportion varies from two 
to ten per cent. Sometimes the requirement is made 
that the signatures to the petition shall be distributed 
throughout the state or district. Sometimes a candidate 
also is required to pay a fee for the privilege of having 
his name appear on the ballot. Voters, in registering, 
are required to indicate the party of their preference. 
Primaries of all parties are usually held on the same day 
and at the polling places commonly used for elections. 
When the voter approaches the polling place, he is given 
a ballot of the party which he has previously indicated as 



NOMINATION AND ELECTION MACHINERY 87 

his preference. In general, the candidate receiving a 
pluraHty of votes becomes the nominee of the party for 
the office in question. 

The direct primary has not, however, solved the prob- 
lem of popular government. It has, indeed, scarcely 
come up to the expectations of its friends or the 
fears of its enemies. Its chief weakness as applied to 
state elections is that it requires organization to carry 
the primary elections as well as the regular election. 
This continues to put a premium upon the control of the 
party machine and in some instances has resulted in pre- 
primary struggles quite as unregulated and almost as full 
of dangerous tendencies as the old primaries themselves. 

The state of Pennsylvania, in 1906, provided for the Presidential 
election of delegates at large to national conventions by primary 
direct primary. Wisconsin, in 1907, added to her already 
excellent law the election of all delegates to national con- 
ventions.^ Oregon, California, and several other states 
followed, adding a popular expression as to the candidates 
for the presidency, in time for the election of 191 2. 

The details of the presidential preference primary system 
vary. In some states, as in California, the delegates are all 
elected at large. In other states four are elected at large 
and two from each congressional district. Besides being 
given an opportunity to vote for delegates, whose names 
are placed on the ballot, by petition in the same manner as 
those of candidates in any direct primary election, each 
voter may express his preference for a candidate for 
President, nominated in the same way. The California 
law, which is one of the most elaborate, provides that the 
names of the various candidates for delegate be arranged 
in a column under the name of the candidate for President 
whom they prefer, or if they have expressed no preference, 
1 See Merriam, C. E., Primary Elections. 



88 PARTIES AND ELECTIONS 

in a ''no preference" column. Candidates who have 
been nominated as a group may be voted for by placing 
a cross in the square beside the names of the group as they 
appear on the ballot. There is a blank column in which 
names of presidential candidates and candidates for dele- 
gate may be written by the voter, 

SUGGESTIONS FOR FURTHER STUDY 

Reference should be made to Reed, pp. 49-68, and Ray, pp. 
74-171 and 247-272. OsTROGORSKi, M,, Democracy and the Party 
System, pp. 3-103, gives a very fuU account of the development of 
the convention system. Pages 331-350 give an account of the more 
recent reforms. Cleveland, F. A., Organized Democracy, pp. 201- 
242 and 262-272, and Merriam, C. E., Primary Elections, will be 
found readable and thoroughly sound books. Jones, C. I., Readings 
on Parties and Elections, i)p. 37-71 and 212-225, contains interesting 
material. Constant reference should be had to the law of your own 
state and ample use made of illustrative material, such as sample 
ballots, etc. An interesting assignment will be Dickens, Pickwick 
Papers, ch. xiii, which gives an account of an old English election. 

For the use of teachers the following may be suggested : American 
and English Encyclopaedia of Law, under title " Elections " ; Bishop, 
Cortland F., History of Elections in the American Colonies; Dal- 
LiNGER, F. W., Nominations for Elective Office in the United States; 
Haynes, G. H., The Election of Senators; Goodnow, F. J., Politics 
and Administration; Meyer, E. C, Nominating Systems; Lawton, 
George W., The American Caucus Systems; McMillan, D. C, 
The Elective Franchise in the United States; Ostrogorski, M., 
Democracy and the Organization of Political Parties, vol. ii. Lowell, 
A. L., Government of England, vol. i, pp. 218-238, describes the 
English system. Merriam and Ray cited above give ample bibliogr 
raphies. 

Topics : 

The Congressional Caucus. 

Origin of the Delegate Convention. 

The History of Primary and Election Laws in Your State. 

Existing Ballot Law in Your State. 

Direct Primary. 



CHAPTER VIII 
PARTY ORGANIZATIONS AND ACTIVITIES 

We have already covered the most important phase Party or- 
of the organization of pohtical parties in discussing the s^nization 
means by which party nominations may be secured. 
Parties, however, perform such an important function 
in our government, and their activities play such a large 
part in the hfe of the people, that we must notice how 
they are organized for carrying elections and the methods 
which they adopt for this purpose. 

At the very top of the party organization is the na- National 
tional committee. The Republican national committee is committee 
made up of one person from each state, selected by the 
delegation from that state to the national convention. 
They hold office for four years from the time of their 
choice. This has had very important results, because 
the national committee makes up the "temporary roll," 
that is, a list of those persons entitled to take seats as 
delegates at the beginning of the convention. The Demo- 
cratic platform of 191 2 provides that their national com- 
mitteemen shall be elected by primaries in each state and 
that they shall take office immediately on election. At 
the head of the national committee is the national chair- 
man. He is elected by the committee, but his name is 
suggested by the candidate for the presidency, to whom 
the national chairman is always personally responsible. 
The success of the campaign depends to a large extent on 
the tact and energy of the national chairman, for he must 
know the places where the party strength should be 
exerted and keep the whole machine moving in harmony. 

89 



QO PARTIES AND ELECTIONS 

The national committee is divided into a number of 
subcommittees, one of which, for example, has charge of 
the raising of funds, and another of the selection and dis- 
tribution of speakers. For the purpose of conducting 
congressional campaigns, there is a congressional com- 
mittee, named by a caucus of the members of the party 
in the House of Representatives and Senate. Each state 
has a state central committee, which in states still adher- 
ing to the convention method of nomination is created 
in a manner similar to that of the Republican national 
committee. In states in which the direct nominations 
are in vogue, a variety of means have been adopted for 
constituting the party committee.^ There are also city, 
county, precinct, or town committees, now usually named 
at the primaries. 

i All these committees, from the national committee 
down, generally preserve their existence for a period cor- 
responding to the interval between the national, state, 
or local elections in which they are particularly interested. 
Sometimes, especially in great states like New York, the 
committees remain permanently active and retain regular 
offices. In general, however, including the national com- 
mittee, they go into abeyance after one election until 
the next approaches. This system of organization may 
be marvelously effective, and it has the great merit of 
flexibility. It can readily be contracted or expanded to 
meet the needs of the situation. 
Party Under the immediate direction of the local committee 

are a number of persons who are quite ready to labor 
under its lead. We call them "party workers." Only a 
small proportion of the membership of any party are 
workers, and unhappily they do not always represent the 

^ Usually either the party nominees for state and national ofl5ces or 
persons elected directly to the committee. 



workers 



PARTY ORGANIZATIONS AND ACTIVITIES 91 

best element in the party, — rather the contrary. There 

are, however, certain men who are ready to distribute 

Hterature, and to canvass and buttonhole, ' and in general 

to exert themselves for the sake of the party. It is from 

the ranks of the workers that the local committees are 

recruited, and the views of the party as expressed in its 

platform and in the utterances of its candidates are to 

a considerable extent determined by them. 

Another matter which deserves mention is the ease Facility with 

with which Americans organize in pohtics. The most w^^*^. ^® ■ 

^ ^ ^ organize 

remarkable example of this is the sudden rise of the poUticaUy 
Progressive party in 191 2. Beginning about the first of 
July with no organization whatever, the Progressives 
effected an organization, nominated presidential electors 
in every state in the Union except Oklahoma, and polled 
a total of 4,123,000 votes. Less dramatic than this, but 
of equal value in proving the political adaptability of the 
American people, is the experience of those cities which 
have adopted the system of non-partisan elections. Pre- 
vious to each election voluntary committees are organized. 
The whole machine of an active political campaign is set 
in motion and the election held, all within the space of a 
few weeks. 

We have described the normal party organization. Political 
Such an organization is the servant of the party. Occa- 
sionally, however, we find the situation reversed and the 
organization controlHng the party. When this state of 
affairs exists, we call this organization a "machine" and 
its leaders '^bosses." Machines naturally grow up when 
the policies which the party was created to promote have 
been carried out or sunk into oblivion. The party, held 
together by its esprit de corps, goes on. Stimulated by 
hope of political jobs and other favors, the party workers 
continue as active as before. They frequently dominate 



machines 



92 PARTIES AND ELECTIONS 

in primaries and conventions because of popular indif- 
ference. Once in control, they confidently count upon 
the party name to induce the rank and file to follow them. 
If the machine begins to go to pieces, it is patched up 
with more corruption, greased with more patronage, and 
it runs on a while longer. Especially in the great states 
where there is a large proportion of ignorant foreign 
voters who can be controlled by the workers, machines 
are powerful. They are promoted by persons who wish 
to violate the liquor laws and other laws for the protection 
of morality, and who are willing to pay for the privilege. 
They are promoted, too, by the existence of great cor- 
porations which are willing to buy favorable legislation 
from those in control of the government. 
Political or- A large part of the power of the machine is, as we have 
ganizations seen, derived from the fact that if it can control the process 
non-partisan of nomination, it can thus get the exclusive right to confer 
ballot i\^Q party name on candidates. This is the reason why 

the adoption of the Australian ballot and secret voting 
failed to break the power of the machine. Many Ameri- 
can cities have now adopted a form of ballot which does 
a good deal toward accomplishing this result. In these 
cities, any person may have his name placed upon a 
ballot on the fiHng of a petition signed by from ten to 
twenty-five persons. The names appear without party 
designation. In case there are more than two candidates 
for the office, and none of them receives a majority of the 
votes at the election, a second election is held at which 
the contest is Hmited to the two candidates who received 
the highest number of votes at the first election. In this 
way two results are accomplished: while the candidate 
may still be nominated by a party, there is no monopoly 
of the right to bear the party name on the ballot. In the 
second place, a majority election is secured. This new 



PARTY ORGANIZATIONS AND ACTIVITIES 93 

system has greatly aided the breaking up of the power of 
the machine, but without destroying the opportunity for 
legitimate political organization. Its non-partisan feature 
has prevented city elections from being decided on na- 
tional issues — a very great evil. Tammany Hall could 
not have dominated New York City if its candidates had 
not always received the votes of many thousands of 
Democrats, who put national party allegiance before 
good city government. Majority elections have prevented 
the votes of good citizens from being divided among 
several candidates. 

Normal party organizations and machines alike have The political 
for their main object the carrying of elections. They <^*"^P^*sn 
engage in '^ campaigns" for the purpose of influencing 
public opinion in their direction. Sometimes the cam- 
paign is a quiet or "gumshoe" campaign. Machines 
relying on corruption for their results more frequently 
use this method. Usually, however, the campaign is a 
very open and noisy affair. Great pubHc meetings or 
political raUies are held. The old-fashioned rally con- 
vinced very few opponents, serving only to arouse the 
enthusiasm of the party. Of late years, however, many 
men, especially those of progressive views, despairing of 
reaching the people through the newspapers which were 
in the hands of their opponents, have taken to public 
speaking as a means of reaching the people. The cam- 
paigns of Roosevelt, Wilson, La Follette, and Johnson of 
California have depended to a large extent on their ef- 
fectiveness as public speakers. The man with a real 
message can always get a hearing and make converts. 
Of course this is not true of the speaker who spends most 
of his time "pointing with pride" to the achievements 
of statesmen long dead. The national committee and 
each state central committee conduct bureaus for the 



literature 



94 PARTIES AND ELECTIONS 

purpose of supplying speakers where they are most needed. 
Their expenses are usually paid from the party funds, 
but in general they receive no other compensation. 
Campaign For the instruction of party speakers in presidential 

campaigns, each party gets out a campaign textbook, a 
volume of several hundred pages containing all the ma- 
terial necessary to prepare a party speech. Great quanti- 
ties of literature are distributed, particularly portions of 
the Congressional Record, into which a congressman can 
get inserted practically anything he desires and which 
can be sent free under his frank. The state of Oregon 
originated the idea of providing what is known as a 
^'publicity pamphlet," in which each candidate must 
take certain space and may take more. He pays a nomi- 
nal fee for this privilege, and the pamphlet is sent by the 
secretary of state to each voter. This idea has been 
adopted in several other states and is worthy of adoption 
elsewhere. The campaign managers also devote a great 
deal of time to getting matter favorable to their candi- 
date into the newspapers. Skillful publicity experts are 
employed and material, sometimes in the form of stereo- 
typed plates, is furnished, especially to the country news- 
papers. In these days the great city newspapers not only 
advocate the candidate of their choice in their editorial 
columns, but sometimes distort the news in order to 
assist him. This makes it very hard to get from any one 
newspaper a fair idea of what is happening in a campaign, 
and has had a great deal to do with the increasing in- 
fluence of public speaking. 

Numerous other campaign activities are the formation 
of clubs, great parades, and the use of street-car adver- 
tising and of posters. Our English cousins have carried 
this last campaign method to very great extremes, and 
it is growing in importance in this country. Men who will 



PARTY ORGANIZATIONS AND ACTIVITIES 95 

not stop to read an article will, because they cannot help 
it, read the gigantic posters on the billboard. 

It takes money to do all these things, and political Campaign 
parties put great reUance on their campaign funds. The ^ons*^"" 
amount of money necessary to carry on a campaign has 
increased very greatly in the last fifty years. Lincoln was 
elected in i860 with a campaign fund of less than one 
hundred thousand dollars. The climax was supposed to 
have been reached in 1896, when the Republicans were 
accused of having more than seven million dollars. This 
was undoubtedly an exaggeration, but they did have so 
much money as to cause a great deal of comment and to 
set the wheels of reform in motion. Similar criticisms, 
however, were made of the extravagance of campaign ex- 
penditures in 1904. In the campaign of 191 2 the Repub- 
licans spent a little under a million dollars, the Democrats 
a little over a million, while the expenditures of the 
Progressives amounted to less than seven hundred thou- 
sand dollars. 

Even more important than the total amount of cam- Sources of 
paign funds are the sources from which they are received. J*°^**g^ 
Up to a few years ago very large gifts from individual 
rich men and corporations were common and there was 
a well-founded complaint that they expected and received 
favors from the successful party as compensation for their 
contribution. This led to the demand for publicity re- 
garding campaign contributions. In the campaign of 
1908, first the Democrats, and then the Republicans, 
announced their intention of publishing a list of their 
contributors. In 191 1 this was made the law for national 
elections. Similar regulations have been adopted in 
many of the states. Another evil source of campaign 
money was from the assessment of office holders. This 
has long been forbidden in the case of the United States 



96 



PARTIES AND ELECTIONS 



Campaign 
expendi- 
tures 



civil service, but municipal and state office holders have 
been assessed pretty generally down to the present time. 
The laws, however, are rapidly being made more stringent 
with regard to this matter. The bulk of campaign con- 
tributions now comes in small amounts from individuals. 
Rich men of course still contribute, but a smaller propor- 
tion of the whole. Candidates themselves frequently 
put up considerable sums of money, but the bulk of the 
sinews of war are supplied by the rank and file of the 
party. The Progressive campaign was financed to a great 
extent by small subscriptions. This method has a great 
advantage from the party standpoint, in that every person 
giving to the party becomes so much the more interested 
in its success.^ 

We have already seen something of the various activi- 
ties of the political campaign. Most of these are thoroughly 
legitimate and call for the expenditure of large sums of 
money. There has, however, been a good deal of improper 
use of money in influencing elections. This has led to the 
adoption of corrupt-practices acts in various forms. In 
some states, as in Pennsylvania, enumeration has been 
made of objects for which money can be legally spent 
and expenditures for other purposes prohibited. Several 
states limit the amount of money which can be spent by 
the candidate to a certain proportion of the first year's 
salary of the office he hopes to fill. An Act of Congress, 
approved August 19, 191 1, has limited the amount that 
a candidate for representative may spend in securing 
nomination and election to five thousand dollars, and the 
amount a senator may spend to ten thousand dollars. 
This, however, is exclusive of personal expenses for travel. 



^The Socialist party is a permanent dues-paying organization. Each 
Socialist local unit holds periodic meetings, even when no election is in 
prospect. Their campaign never stops. 



PARTY ORGANIZATIONS AND ACTIVITIES 97 

subsistence, stationery, the writing and printing and dis- 
tribution of letters, circulars, and posters, and telephone 
and telegraph services. The early corrupt-practices acts 
in this country proved unavailing because of the lack of 
publicity attending the contributions and expenditures 
of parties. The Act of Congress to which we have already 
referred requires not only publicity of contributions but 
publicity of expenditure. Even this, it is to be feared, 
will not entirely prevent the corrupt use of money in elec- 
tions, there having been devised as yet no method by which 
candidates or campaign committees can be obliged to 
render an honest report. If a voter is bribed, the trans- 
action is usually a very private one between the candi- 
dates or his agents on the one hand, and the voter on the 
other. Neither is likely to say anything about it. For 
the prevention of corruption in elections we must depend 
primarily upon the standard of morahty of the com- 
munity. 

SUGGESTIONS FOR FURTHER STUDY 

This chapter covers several subjects of great importance, with 
regard to which a vast deal has been written. The references are 
arranged under the several topics. 

Party Machinery : The most available account is to be found in 
Ray, pp. 1 72-191. Ford, H. J., The Rise and Growth of American 
Politics, pp. 294-333, is readable and inspiring. Reference should 
also be made to Woodburn, J. A., Political Parties and Party Prob- 
lems, 193-204; Jones, C. L., Readings on Parties and Elections, pp. 
169-211. For more thorough study, Macy, Jesse, Party Organiza- 
tion and Machinery, will prove valuable. 

The Machine : Bryce, chs. Ix-lxviii, is incomparable. Ostro- 
GORSKi, M., Democracy and the Party System, pp. 225-281 ; and Ray, 
P. O., Introduction to Political Parties and Practical Politics, pp. 
333-367, will also be found useful. Howe, F. C, The City the Hope 
of Democracy, Munro, W. B., The Government of American Cities, 
and other books on municipal government deal at length with cor- 
ruption in municipal politics. There are a number of books of a 



98 PARTIES AND ELECTIONS 

more popular character which may help to excite interest in the 
subject. Among them Steffens, Lincoln, The Shai^ie of the Cities; 
Lindsay, B. B., The Beast and the Jungle (appeared in " Everybody's " 
during 1909) ; Roosevelt, Theodore, Essays on Practical Politics, 
are notable. For the use of teachers, Goodnow, F. J., Politics and 
Administration, is especially recommended, together with Ostro- 
GORSKi, Democracy and the Organization of Political Parties. 

The Campaign : Bryce treats this subject also with great bril- 
liancy, chs. Ixxi-lxxiii. See also Ray, pp. 192-204 (gives excel- 
lent bibliography), Ostrogorski, M., Democracy and the Party 
System, pp. 166-206. A very entertaining magazine article is that 
by Guild, Curtis, on Spellbinders, "Scribner's," xxxii, p. 561. 

Party Funds and Their Expenditure : The most available refer- 
ence is Ray, pp. 205-230, which contains a very full bibliography. 

It will be well for the teacher to secure copies of the campaign 
textbooks of the leading political bodies in the last presidential 
campaign. If an intelligent local politician can be secured to describe 
political methods, it will greatly assist the students in getting a 
clear idea of the subject. 

Topics : 

Advantage should be taken of the opportunities for first-hand 
information concerning political methods. Students should be 
encouraged to attend and report on poHtical meetings and collect 
campaign literature. 

Other subjects for report are : Organization of Local Committee 
of Republican or Democratic Party ; Organization of a Socialist 
Local ; Laws of Your State regarding Campaign Expenditures. 



PART III 
STATE GOVERNMENT 



CHAPTER IX 

THE DEMOCRATIC EVOLUTION OF STATE 
CONSTITUTIONS 

The form of government created by the early state The demo- 
constitutions established the bare outline at present movement 
in vogue. It was soon vastly modified in its spirit 
and working by the rising spirit of democracy. The 
conditions of the new country, in which almost infinite 
possibilities of progress were open to every individual, no 
matter what his origin, made strongly for the feehng that 
one man was as good as another. One man was more 
nearly as good as another than is possible in older so- 
cieties. The language of the Declaration of Independence 
and the implications from it to which we have already 
referred carried men irresistibly towards a belief that all 
men should participate equally in the choice of their 
rulers. The French Revolution, although its excesses 
shocked the hard-headed American, served undoubtedly 
to kindle his desire for a government in which the whole 
people should govern. 

We have seen how the immediate effect of the American Broadening 
Revolution was to extend the suffrage while still leaving *^® ^^ ^^^® 
in effect in all the states property and religious qualifica- 
tions. Early in the nineteenth century they began to 
disappear in the older states ; the states of the new West 
never estabhshed them.^ By i860 all such tests had disap- 
peared except in Pennsylvania, where tax paying was a 
condition to voting, and in Rhode Island and South 

1 Maryland abolished all property qualifications in 1810; New York, 
except for negroes, in 1821 ; Tennessee in 1828 ; and Mississippi in 1832. 

lOI 



I02 STATE GOVERNMENT 

Carolina. In general, it is fair to say that in i860 the 
United States had a system of white male suffrage. After 
the Civil War, in most of the Northern states voluntarily, 
and in the South by the compulsion of the Fourteenth and 
Fifteenth amendments to the Constitution, the right to 
vote was extended to the negro. In nine states the ulti- 
mate step toward universal suffrage has been taken by 
extending it to women on the same terms as to men.^ 
There can be no doubt that as the demand for the ballot 
grows among the women themselves, it will be granted 
to them everywhere. 
The educa- At the same time that we have been in general broad- 
tionaltest ening the suffrage, there have been in operation forces 
tending to restrict it. One of these forces has been the 
growing belief that persons too ignorant to read and 
write must be lacking in the intelligence or information 
necessary to the wise use of the ballot. Acting on this 
theory, Connecticut in 1855 adopted an educational test. 
She was soon followed by Massachusetts, and somewhat 
later California, Maine, New Hampshire, Washington, 
and Wyoming established a similar policy. The test is 
not a severe one, consisting merely in the proof of one's 
abihty to read a clause of the constitution of the state, 
selected at random, and to write one's own name. A 
somewhat similar result has been brought about by the 
New York registration law, which requires each voter to 
sign his name unless he is unable to read or write. Thou- 
sands of persons, unwilling to acknowledge their illiteracy, 
voluntarily remain unregistered. 

In the South, the motive of eliminating the negro as a 
political factor has led to some very interesting restric- 

* These states are Arizona, California, Colorado, Idaho, Montana, Nevada, 
Utah, Washington, and Wyoming. In Illinois women may vote for all except 
"constitutional" officers, i.e. those whose existence is prescribed by the state 
constitution. 



THE DEMOCRATIC EVOLUTION 103 

tions on the suffrage. Sometimes a simple educational The negro 
test has been established, which differs, however, very g^g * g 
much in its intent and effect from the similar provisions 
in the Northern states. In Mississippi, for example, the 
test is to read, or understand when read, the constitution 
of the state. When an ignorant white man appears before 
the registration ofhcer, he has read to him a very simple 
sentence, but when a negro puts in an appearance he is 
given one of the more abstruse provisions to define and 
his answer is rarely satisfactory. Another type of anti- 
negro provision is that of the Virginia and Texas consti- 
tutions, requiring the payment of a poll tax as a condition 
precedent to voting. The negro is apt to forget all about 
the necessity of making payment, or, if he does make it, 
improvidently loses the receipt. It sometimes results, 
especially in cities, in the political bosses paying the poll 
taxes of large numbers of negroes in order to get their 
votes. It is to be said, however, that while this sort of 
restriction operates more harshly against the negro than 
against the white man, its effect has been to disfranchise 
a very considerable number of the poorer class of whites. 
Still a third type was that which required ability to read 
and write, or the possession of property of a certain value, 
but with the proviso that all persons who could vote at 
a time when no negroes could vote, and their descendants, 
are exempt from these qualifications. These exceptions 
are known as ''grandfather clauses." This method of 
eliminating the negro voter has been declared unconsti- 
tutional by the United States Supreme Court in the lead- 
ing case of Guinn vs. Anderson. 

The Constitution of the United States as adopted in The United 
1787 left the question of the suffrage wholly to the states, stitutLnand 
even as to the election of representatives in Congress and the suffrage 
presidential electors. At the close of the Civil War, with 



104 STATE GOVERNMENT 

the intention of giving the freedmen protection against 
encroachments on their Uberty by their late masters, the 
Fourteenth Amendment to the Constitution was adopted. 
It provided that "when the right to vote is denied to 
any of the male inhabitants of such states, being twenty- 
one years of age, and citizens of the United States, or in 
any way abridged, except for participation in rebellion 
or other crime, the basis of representation therein shall 
be reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male citi- 
zens twenty-one years of age in such states." Shortly 
after, to make the negro's right to vote more certain, the 
Fifteenth Amendment was added, declaring that the right 
to vote should not be denied or abridged on account of 
"race, color or previous condition of servitude." There 
has never been any serious attempt on the part of Congress, 
in whose hands the question of reducing representation 
rests, to carry out the provisions of the Fourteenth Amend- 
ment. There seems to be a disposition on the part of the 
country at large to permit the South to meet its peculiar 
problems in its own way. It is, therefore, all the more 
worthy of note that the Supreme Court at its October term, 
1 9 14, declared unconstitutional the "grandfather clause" 
of the Oklahoma constitution^ and a similar provision in 
the city charter of Annapolis, Maryland.^ Henceforth the 
literacy test, which is the most reasonable test of the 
right to vote, must be applied equally to all races and 
colors. 
Naturaliza- In addition to these limitations on the privilege of 
^°^ voting, there are certain others of great importance. In 

the first place, generally speaking, it is necessary to be a 
citizen of the United States. Citizenship may be acquired 

^ Guinn vs. United States, 35 Supreme Court Reporter 926. 
2 Myers vs. Anderson, 35 Supreme Court Reporter 932. 



THE DEMOCRATIC EVOLUTION 105 

by birth within the United States, except in the case of 
the tribal Indians. Persons born abroad, of American 
parents, are permitted to elect to be citizens of the United 
States and may on their return to this country enjoy all 
the privileges of American citizens. Any immigrant who 
is a ''white person" or of African descent may be natural- 
ized after he has lived in the United States for five years. 
Any judge of a United States or higher state court has 
the authority to issue naturalization papers. It is neces- 
sary for the applicant to file with the court, at least two 
years before he finally comes up for admission, a state- 
ment on oath that he intends to become a citizen of the 
United States. A certified copy of this statement is fur- 
nished the would-be citizen, which is sometimes spoken 
of as his "first papers." A few states permit persons who 
have got as far as this on the road to citizenship to vote. 
The petition for complete naturalization must be signed 
by the applicant and contain a sworn statement that he 
is not a believer in polygamy and that he renounces his 
allegiance to his native country. His term of residence 
was formerly proved by the sworn statements of two 
witnesses, but because of the ease with which such wit- 
nesses could be furnished by ward politicians, he must 
now present also a certificate from the Bureau of Immigra- 
tion stating the time and place of his arrival. When the 
applicant comes before the court for naturalization, the 
judge examines him as to his knowledge of American 
history and institutions. Until recently this examination 
was almost always a farce. It is now rather strictly ad- 
ministered. Some judges send the appHcants to a class 
conducted in connection with the city night schools. 
When the class is prepared, they are graduated into citi- 
zenship with suitable ceremonies. The final step is the 
oath of allegiance to the United States, which transforms 



io6 



STATE GOVERNMENT 



Other 
limitations 



The long 
ballot 



the alien into a citizen. The naturalization of an alien 
makes citizens of his wife and minor children. If, on the 
other hand, an American woman marries a subject or 
citizen of some foreign prince or state, she loses her 
American citizenship. 

All the states have followed the Enghsh precedent of 
fixing the age at which persons may vote at twenty-one 
years. Criminals, idiots, and insane persons are excluded 
from the suffrage in all the states. The more serious 
crimes carry with them perpetual disfranchisement, 
unless citizenship is restored by the clemency of the 
pardoning authority. Paupers and inmates of pubUc 
institutions are frequently not permitted to vote. 

Another result of the democratic movement has been 
to increase the proportion of elective officials. The in- 
creasing complexity of American hfe made necessary a 
larger number of executive departments. Jobbery and 
corruption had so frequently marked the conduct of the 
legislatures to which the early state constitutions had 
intrusted the election of officers that they had forfeited 
popular confidence. The old-time dislike of executive 
power prevented the new positions from being made part 
of the governor's patronage. Where more safely, it was 
reasoned, could the power of selecting officers be lodged 
than with the "sovereign people" whose interests they 
are to serve ? The result has been that a large number of 
officers who under any rational scheme of administrative 
organization should have been subordinates of the governor, 
were made his coordinates and elected on the same ticket 
with himself. The judges likewise, and for the same 
reason, have been made generally elective. On the same 
principle a rapidly increasing number of county and city 
officers came to be chosen directly by the people. A glance 
at the ballot voted by the people of any state in 19 14 



THE DEMOCRATIC EVOLUTION 107 

would show you the result in comprehensive form. The 
ballot voted by the Democrats of New York City in 
the presidential primary of 191 2, which had the names of 
candidates arranged in a single column, was so long that 
a tall man standing on a chair could not hold it clear of 
the floor. 

In spite of its democratic appearance, the "long ballot" The long 
has operated very powerfully against genuine democratic ^^°* ^^^^ 
government. It has imposed a burden on the voter greater cratic 
than he can reasonably bear. Besides the governor and 
lieutenant-governor, the executive officers elected have 
purely ministerial duties to perform, which, while they 
are of undoubted importance, are not of a character to 
arouse popular interest. So true is this that an elective 
state ofiicer seldom "gets into the newspapers," unless he 
has been guilty of official wrongdoing. The candidates 
for these positions have generally been obscure men and 
by reason of their very numbers are inconspicuous in the 
campaign. The blaze of pubHcity which surrounds the 
candidates for governor seems only to intensify the gloom 
in which the aspirants for these minor offices are lost. It 
is very rare to find in any gathering of ordinary citizens 
more than five to ten per cent who know the names even 
of the secretary of state, comptroller, treasurer, surveyor 
general, attorney general, and other elective officers of 
their state. Under such circumstances it is only natural 
that the voter, ignorant of the fitness of the respective 
candidates, should simply vote his party ticket straight. 
Here, indeed, has been one of the chief props of the 
power of political machines. These positions could be 
disposed of in the way to get the most political sup- 
port for the machine without risk of exciting the voters 
to revolt. It was thus that the "long ballot" played 
democracy false by giving the real selection of state offi- 



io8 



STATE GOVERNMENT 



The short- 

baUot 

movement 



Constitu- 
tions and 
amend- 
ments 



cials into the hands, not of the people, but of rings and 
bosses. 

A great movement has lately begun for a short ballot. 
Already nearly three hundred cities have shortened their 
ballots by adopting the so-called commission form of 
government. In state affairs the movement has not gone 
so fast, but it has behind it the influence of all the great 
political leaders of the country, including Presidents 
Taft, Roosevelt, and Wilson. The short-ballot advocates 
have a strong argument in the example of other countries, 
especially England, where a voter votes for members of 
Parhament usually one at a time, and at entirely separate 
elections votes for single members of the borough or 
county council. The short-ballot advocates would abolish 
all elective officers in the state government except the 
governor, heutenant-governor, and legislators; in the 
city all except the mayor and council; in the county all 
except the county commissioners or supervisors. 

The state of Massachusetts, by submitting her consti- 
tution of 1780 to the people for ratification, set a fashion 
which has become practically universal among the states 
with respect to new constitutions or amendments. Wholly 
new constitutions are drafted by conventions usually 
called by the legislature, although in some instances the 
question of calling the convention must be submitted to 
the people. In New York it must be so submitted at 
certain intervals. Amendments are submitted to the 
people directly by the legislature. A larger majority than 
in the case of an ordinary law (two thirds is the common 
figure), or passage by two successive legislatures, is 
usually required. Almost every state has had its con- 
stitution remade in entirety at least once, some of them 
several times. Amendments have been common. Cali- 
fornia adopted twenty- two at once in 191 1. As a result, 



THE DEMOCRATIC EVOLUTION 109 

our state constitutions are getting to be very long docu- 
ments full of detailed provisions that really ought not to 
be in the "fundamental law." The effect of this is to 
limit the power of the legislature and augment that of 
the courts. If written constitutions are worth having at 
all, they should be confined to general principles and be 
reasonably permanent. It is absurd to have to amend 
the constitution every time it is desired to pass a bit of 
really important legislation. 

Many other matters are usually submitted to the people other 
for their approval or disapproval. As a safeguard against referenda 
the extravagance of legislatures, bond issues are usually 
valid only after such approval.^ Some questions, like 
the removal of state capitals, have also been submitted 
to the people of the state as a whole. Furthermore, it has 
become the practice of our legislatures to pass laws which 
are to go into effect only in those localities which vote in 
favor of them. The best known of these laws are the 
so-called local-option liquor laws, which have been adopted 
all over the country. 

In some ways the most interesting phase of the demo- The initia- 
cratic evolution of state government has been the adop- ^^^^ and 
tion of the recall, the initiative, and the referendum as recall 
applied to laws in general. The effect of these reforms 
has been to put the government into the control of the 
people, not periodically as formerly, but at all times. 
They are simply the logical fulfillment of the theory of 
democracy. They are open to attack, but only as de- 
mocracy itself is. A full discussion of the merits and 
defects of the initiative and referendum will be taken up 
when we come to consider the process of lawmaking. 
The recall provides that if a petition for the recall of an 
officer signed by a certain proportion of the qualified 

1 See Chapter XLI. 



no STATE GOVERNMENT 

electors of the state, usually twenty-five per cent/ is 
filed with the secretary of state, an election must be held 
to determine whether or not that officer shall be removed 
and some one else elected in his stead.^ The recall has 
never yet been employed to remove any state officer. It 
is scarcely likely to be freely used upon officers elected by 
the people at large, owing to the expense and difficulty 
of getting the necessary signatures. In any case it will 
probably be used with great moderation. 

SUGGESTIONS FOR FURTHER STUDY 

The development of the state constitutions is admirably dealt 
with by Beard, pp. 78-89, 160-163, and 453-457, and Readings, 
pp. 72-92, 150-153, 391-410, and Bryce, chs. xxxvii and xxxviii. 
On the short ballot see Childs, Richard S., Short Ballot Prin- 
ciples, and the publications of the Short Ballot Organization (383 
Fourth Avenue, New York City). See also Reed, pp. 95-107. 
There are a number of manuals on naturalization intended for pro- 
spective citizens which may prove useful, among which may be 
mentioned Kallmeyer, How to Become a Citizen of the United States, 
and O'Neil, R. K., Naturalization Made Easy. 

A study should be made of the constitutional development of 
your own state, using the original documents. They may be obtained 
from the secretary of state or found in Thorpe, op. cit. 

The teacher may find the following helpful . Dodd, W. P., 
Revision and Amendment of State Constitutions; Dealey, J. Q., 
Growth of American State Constitutions; Wise, John S., Citizenship, 
a very thoroughgoing treatise on the law relating to citizenship; 
Baldwin, Simeon E., Modern Political Institutions, pp. 45-79. 

Topics : 

A discussion of Woman Suffrage will be interesting. 
History of the Suffrage in Your State. 

1 Twelve per cent for state ofi&cers in California. 

2 The recall was introduced into the field of state government by the 
people of Oregon, June i, 1908. It has since been adopted by California, 
in 191 1 ; Arizona, in 191 2; Colorado, in 191 2; Idaho, in 191 2; and Wash- 
ington, in I 91 2. 



THE DEMOCRATIC EVOLUTION m 

The Long Ballot in Your State. 
Progress toward a Short Ballot. 
Recall Provision of Your State Constitution, if there be such 

a provision. 
The Recall : Arguments For and Against. 
The several constitutions of your state and the amendments of 

its present constitution may be divided up as topics among a 

considerable number of students. 



CHAPTER X 



THE GOVERNOR 



Growth of 
the gover- 
nor's power 



The gover- 
nor and the 
elective 
state 
officers 



As we have already seen, the governor in the early 
state constitutions was a well-to-do and dignified but 
not very powerful officer. Since that time very great 
changes have taken place in his position. He has lost 
somewhat in dignity, but he has made it up in substan- 
tial power. Governors no longer refuse, as did John 
Hancock, to call upon a visiting President of the United 
States in the belief that such a visit would be incon- 
sistent with their dignity, but they exercise far more 
influence over the fortunes of their respective states than 
even the governor of Massachusetts in 1789. This change 
has been brought about partly by an increase in the 
powers accorded the governor by the Constitution and 
partly by the entirely extra-legal growth of his political 
influence as chief of the state. 

We naturally think of the governor as the head of the 
executive department of the state government. This 
is true only in part. In the early days, the power of ap- 
pointing the principal administrative officers was vested 
in the legislature more commonly than in the governor. 
When this power passed from the hands of the legislature 
it was given, not to the governor, but to the people them- 
selves. We have seen how this has resulted in such places 
being filled by the political bosses with any one whom it 
has suited their convenience to name, regardless of his 
fitness for the position. The governor is able to rely 
neither on the honesty and ability of those officers, nor, 
what is perhaps equally important, on their loyalty. 



112 



THE GOVERNOR 113 

They may; if they belong to another party or faction, 
set dehberately to work to embarrass his administration. 
If it could be said that they represented the wishes of the 
people in so doing, there would be less cause for complaint, 
but they are in no real sense the choice of the people. Thus 
the governor, who has been, as we shall see, dehberately 
selected by the people to be their special representative 
in the government of the state, is by no means the real 
head of the state administrative system. 

Of late years there has been a tendency toward enlarg- The gover- 
ing the appointing power of the governor. Most of the °°^'^ p?^®' 
more recently created positions are filled by him. But meiS^°*^" 
even here he has been denied a free hand. Usually his 
more important appointments require the approval of 
the upper house of the legislature. In Massachusetts 
there still hngers a governor's council, whose principal 
business is to approve the governor's appointments. 
His appointments are usually made for fixed terms and, 
during the duration of his term, the officer is frequently 
removable only with the consent of the upper house. 
Sometimes the appointee is irremovable, except for official 
misconduct amounting nearly to crime. Further, many 
of the departments, especially those controUing state 
institutions, have been placed in the hands of boards 
whose members retire in rotation, so that it may take a 
governor most of his term to change the complexion of 
the board sufficiently to secure its cooperation with his 
ideas. Indeed, in many states the governor is legally 
quite powerless to direct the administration of the state's 
business. Many strong governors have chafed under 
these restraints and have protested strenuously against 
them.^ 

1 There is now apparent a disposition to give the governor a more effective 
power of removal and appointment. This may be illustrated by the action 
of the legislature of California in 191 1. Several important oflacers, including 



114 



STATE GOVERNMENT 



The gover- 
nor's influ- 
ence on 
administra- 
tion 



Military 
power 



Power of 
pardon 



A strong governor, however, is able to exercise a great 
deal of influence over the state administration. If the 
elective officers belong to his own party, his position of 
leadership in the party may enable him to enforce loyalty 
to his policies. By investigations, the threat of publicity, 
and the moral and political force he derives from his posi- 
tion, he may control even the stiff-necked and obstinate 
among the appointive officers. A weak governor, on the 
contrary, who is able to rely only on his legal power, is 
helpless to regulate the administration of the state's busi- 
ness. Most of the time he can be no more than a spec- 
tator. 

As chief of state the governor is commander in chief 
of the militia or National Guard. He never takes the 
field in person, but through his appointee, the adjutant 
general, directs and controls the organization of the 
state's military forces and directs its operations in time 
of trouble. Perhaps the most important of his military 
powers is that of employing the militia to enforce the 
laws of the state and to suppress riots and other disturb- 
ances. Ordinarily it is the custom to wait for the ap- 
plication of the local authorities for assistance, but if 
the governor deems the situation to demand it he may 
proceed to suppress the disturbances without further 
delay. The governor's control over the troops of the 
state ceases when, in case of war, they are actually mus- 
tered into the service of the United States. 

In all states the governor possesses the power of 
pardoning persons convicted of crime. A pardon can 



the superintendent of banks, the labor commissioner, and the building and 
loan commissioner, formerly holding for fixed terms, will henceforth hold 
only during the pleasure of the governor. The superintendent of printing, 
formerly elected by the people, is now appointed by the governor, and the 
railroad commissioners have likewise been changed from elective to ap- 
pointive tenure. 



THE GOVERNOR I15 

never be granted prior to conviction, and the governor's 
power ordinarily does not cover the case of persons con- 
victed of treason. They may be released only by the 
action of the legislature. In most states the governor 
exercises his pardoning power with the advice of a pardon 
board of some sort, but in others he has to rely on his own 
discretion. It is a fact that a great many prisoners — and 
their relatives — feel that they are suffering an injustice in 
being kept in durance, so that the appHcations for ''ex- 
ecutive clemency," as it is called, are very numerous and 
a large part of the time of the governor's office is occupied 
in their consideration. It is not unusual for the governor 
to hold ''hearings," at which are heard the friends of the 
appHcant for clemency and the prosecutor who secured 
his conviction. 

Another duty of the governor is to take action on Extradition 
"requisitions" for the extradition of persons accused of 
crime. These are simply requests from the governors of 
other states or the representatives of foreign countries 
that the person named be deHvered into the custody of 
their agent. The Constitution of the United States re- 
quires that fugitives from justice from a state shall be 
surrendered by the state to which they have fled. The 
same right has been conferred by treaty on foreign coun- 
tries. There are, however, many questions, such as 
those affecting the identity of the person accused, which 
may properly be urged before the governor in opposition . 
to his honoring the requisition. Further, while the legal 
duty of the governor is clear enough, there is no way of 
obliging him to return any accused person if he does not 
think it right and proper to do so. The result is that a 
good deal of the governor's time is taken up by hearing 
the opposing parties in requisition cases. The governor 
honors a requisition by issuing what is known as a "war- 



Ii6 STATE GOVERNMENT 

rant of rendition," which is simply an order directed to 
any peace officer of the state to deliver the person accused 
to the agent of the state requesting his return. It is 
customary that the accused should be under arrest at the 
time the warrant is issued, but it is not necessary that such 
be the case. The governor has the corresponding duty 
of requesting the return of fugitives from his own state. 
Miscella- There are certain minor executive functions which fall 

neous duties ^^ ^.j^^ Jq^. ^f ^j^^ governor, such as commissioning all 

officers, appointing commissioners of deeds and notaries 
public, and serving as a channel of communication be- 
tween the United States government and the minor civil 
divisions of the state. 
Demands on One of the most onerous portions of the governor's 

the gover- duties is in representing the state on all sorts of formal 
nor's tune ^ ° . . 

occasions. No county fair is complete without its speech 

from the governor, and he is constantly obliged to refuse 
invitations to appear at dedications, anniversaries, ban- 
quets; and kindred occasions which are poured in on him 
from every hand. A surprisingly large proportion of the 
population of the state wish to see the governor on matters 
which appear important to them, and in spite of the ut- 
most vigilance on the part of his secretaries a great many 
do see him. Those who cannot see him, write letters. 
These personal visits and letters relate to every imagi- 
nable subject. For example, recently a man wrote from 
France asking the governor of California to trace relatives 
who came to that state sixty years before and had never 
been heard from. Almost in the same mail came a plea 
from a father of a family of six who expected the gov- 
ernor to provide means for him to come to the state. 
Some come from honest people, some from rogues. They 
doubtless help to keep the governor in touch with the 
people, but they all help to complicate his task. 



THE GOVERNOR 117 

We have seen that the colonial governor was, through The veto 
his possession of an absolute veto on the acts of the legis- 
lature, really a third branch of that department of the 
government. We have seen, too, how in the early state 
constitutions, except in that of Massachusetts, this 
participation in the making of laws was denied him. 
One result of the reaction against the too great respon- 
siveness of the legislatures to the people was the extension 
of the veto power. Georgia, in 1789, and Pennsylvania, in 
1790, adopted veto clauses similar to that of Massachu- 
setts. Since the beginning of the nineteenth century 
practically every new constitution has given the governor 
a veto. Rhode Island and North Carolina are now the 
only states in which he does not possess this power. 
Several of the earlier constitutions made a simple ma- 
jority sufficient to pass a measure over a governor's veto. 
Nine states have at present this rather ineffective form of 
the veto. In Delaware and Nebraska, the necessary 
number is three fifths of all members elected. In the 
rest of the states it is two thirds, more frequently of all 
the members elected, but in some cases simply of those 
present and voting.^ 

Even more significant than the general adoption of the Use of the 
gubernatorial veto has been the change in the extent to ^® ° 
which it is thought right to use it. The early governors 
conceived the veto to be a means of protecting the execu- 
tive department from aggression on the part of the legis- 
lature, or at most for correcting its more dangerous 
follies. That they were to scrutinize every act and veto, 
or sign it on its merits, never entered their heads. This, 
however, is exactly what a conscientious governor does 
to-day. The people look to the governor to save them 

1 The methods of exercising the veto power will be described later. 
(See Chapter Xn.) 



ii8 



STATE GOVERNMENT 



Governor's 
messages 



Control of 
the legis- 
lature 



from the mistakes of the legislature. As a result, all bills 
receive his careful consideration. Of course it is im- 
possible for the governor to study personally the details 
of every bill, but with the assistance of a legal adviser, 
one of his secretaries, or others, he gathers the informa- 
tion necessary to a decision. It is customary to allow 
the friends and opponents of a bill to be heard before he 
signs it, and he seldom vetoes a bill without giving notice 
to the member who introduced it. It is only rarely that 
a measure is passed over the veto. So great is the gov- 
ernor's prestige that unless the legislature is very strongly 
and bitterly opposed to him, it wiU yield the point even 
when the bill originally passed by a large majority. The 
governor has therefore become in a very real sense a third 
house of the legislature. 

Another power which the governor has everywhere is 
that of calling matters to the attention of the legislature 
by means of messages. This power is used with varying 
forcefulness according to the temperament of the gov- 
ernor. A message not only calls a matter to the atten- 
tion of the legislature, but through the newspapers, 
which practically always carry it in full, to the people of 
the state. The governor can thus create an issue and 
summon the people of the state to his support. If he 
has the political sagacity to do this wisely, it is a great 
source of strength to him. 

Most strong governors have some projects — planks 
in the platform on which they were elected — which they 
are desirous of having pushed through the legislature. 
These are known in the language of the capital as ''ad- 
ministration measures." They are supposed to have 
behind them the full strength of the governor, and unless 
the legislature is in the hands of men determinedly op- 
posed to him they will become law. First, all men who 



THE GOVERNOR 119 

agree with the governor, who have followed his political 
standard, are sure to be for them enthusiastically. Second, 
all those men — and they are numerous in every legisla- 
tive body — who desire the crumbs and pickings of poli- 
tics, are likely to be for them. They well recognize the 
power of the governor and are anxious to secure his favor. 
Third, many opponents of these measures on principle are 
made to feel the weight of the governor's displeasure. They 
discover that the governor can veto their bills, can refuse 
them patronage, can deny them the many favors which 
are at the disposal of the administration, and finally, 
through the control which he has of the best means of 
approach to the people, can do them infinite damage with 
their constituents. It is indeed a strong man, either in 
his consciousness of rectitude or in the hearts of his con- 
stituents, who will brave the governor's ill will. For 
motives sometimes good and sometimes bad, this engine 
of the governor's power is frequently set in motion, and 
it is not unusual for the governor not only to have the 
last word on legislation through his veto, but to have a 
controUing voice in the introduction and passage of the 
more important measures of the session. The governor 
sits quietly behind the big desk in his office and by ''send- 
ing for" various members directs the whole struggle. 

Perhaps the most important source of the governor's Sole repre- 
really great power is in the fact that he alone is the real ^®^ ^^^^^ 
representative of the people of the whole state. The state 
legislature, made up of men elected by districts, does not 
in the truest sense represent the state as a whole. Neither 
do those other state officers whose inconspicuous position 
has prevented the people from really choosing them. The 
governor alone represents the whole state, and he is strong 
with the strength of the vast body of men behind him. 
He has a position of real prominence, from which, if he 



I20 STATE GOVERNMENT 

has talent and disposition for it, he may lead the people. 
Every word that he says on any matter of importance is 
" news " and is eagerly seized upon by the hungry reporters. 
If he is announced to speak, thousands flock to hear the 
governor. He has the ear of the people at the same time 
that his high position gives weight to his words. 
Conclusion To sum up the position of the governor : He is weak 
so far as the legal powers given him by the constitution 
is concerned, but he has a vast political influence. He 
is weak in his control of administration, which is^ theoret- 
ically and constitutionally, his sphere, but he is strong 
as a member of the legislative department. His position 
is in this way an anomalous one, and the anomaly is being 
corrected by a moderate tendency to irtcrease his admin- 
istrative power. He has absorbed all that part of the 
people's affections which the legislature has lost, and 
more. He is already the most important factor in state 
government, and he will be more important before he is 
less so. 

SUGGESTIONS FOR FURTHER STUDY 

The first choice for reading to supplement the text is Beard, 
pp. 488-499. See also Readings, pp. 432-456. Reinsch, P. S., 
Readings on American State Government, pp. 1-40, offers some ex- 
ceedingly well-selected articles on the governor. Bryce is very 
disappointing on this subject (see vol. i, pp. 537-540 and 498-501), 
having added practically nothing in the later edition to his original 
statement. His views may be used effectively for comparison with 
those expressed in the text. 

For the use of teachers, see Finley and Sanderson, American 
Executive and Executive Methods; Fairlie, J. A., The State Governor 
(reprinted from "Michigan Law Review," March and April, 1912). 

Special study should be made of the position of the governor in 
the constitution and laws of your own state. The textbooks on 
government of particular states rarely give more than bare details 
of his qualifications, method of election, etc. By searching about, 



THE GOVERNOR 121 

however, it will be possible for the class to construct an outline of 
the powers of your governor. 

Topics : 

The lives of some of the more prominent governors in the history 
of the state may be assigned to students for report to the class. 
This will help to make the governorship appear real. 



CHAPTER XI 

THE LEGISLATURE 

Bicameral We have seen that the colonial legislatures consisted 

legislatiires ^f ^^q houses, except in Pennsylvania and Delaware. 
Pennsylvania continued to have a single chamber only 
for a short time after Independence; Georgia and Ver- 
mont experimented briefly with the idea but soon gave it 
up; so that now two chambers are the universal rule. 
There was at first some variety in the names applied to 
these houses, but the smaller or upper house is now known 
in all the states as the ''senate." The larger or lower 
house is called in some states the "house of representa- 
tives," in others the "assembly," and in still others the 
"house of delegates." The first is the most popular 
designation, and for the sake of convenience we shall use 
it when referring to the lower house. 
Relative im- The houses differ very little in the powers conferred 
th'^t^'^^ ^^ upon each by the constitution of the state. They usually 
houses have the same privilege of originating bills, except that 

in some states bills raising revenue or the general appro- 
priation bill must originate in the lower house. They 
differ to a considerable extent in their size and composition. 
The relative importance of the two houses varies some- 
what from state to state. The upper is always smaller, 
the house of representatives being usually a multiple — 
two or three times — of the senate. Senators in general 
have a longer term than representatives. In twenty- 
five states it is four years, in one state three years, in 
fifteen states two years, and in two states, Massachusetts 
and Rhode Island, one year. Representatives have a 

122 



THE LEGISLATURE 123 

four-year term in three states only, a one-year term in 
four, while in the rest the term is two years. The senate 
is very frequently a continuing body, only half of its 
members retiring at each election. The long term, the 
fact that at least half the members of the house are in 
most states sure to have had legislative experience, and 
the larger size of the districts they represent tend to make 
the senate the stronger of the two bodies. The per- 
sonnel of the senate is more experienced, more able, and of 
more pohtical consequence than that of the house. As a 
smaller body it can transact business more efficiently. 
The share it has in the governor's power of appointment 
adds to its influence. 

It is the custom in this country to pay members of Salaries and 
legislative bodies. The rates are not high. Some of ""^^^s® 
the states offer a fixed sum per annum or per session, all 
the per annum states having annual sessions. The 
highest rate is $1500 per year in New York and Penn- 
sylvania. Ohio, lUinois, and Minnesota give $1000 per 
year. Cahfornia pays $1000 for each regular session 
and ten dollars per day for special sessions. Several 
of the states, instead of paying a lump sum, give a 
per diem of from twelve dollars in Montana to three 
dollars in Kansas and Oregon. In every case, the rate 
of payment of the members of the two houses is the same. 
In addition to the compensation above referred to, the 
members are ordinarily given an allowance for traveling 
expenses between their homes and the state capital. Ten 
cents a mile, going and coming, is the usual rate allowed. 
It of course far exceeds the actual cost of the journey, and 
this " mileage," as it is called, becomes a valuable perquisite, 
especially to the member from a distant part of the state. 
For a long time sessions of the legislature were held 
annually. With that growth of distrust of the legisla- 



124 STATE GOVERNMENT 

Sessions ture to which we have referred, the people began to evince 
a decided desire to limit the activity of the legislature by- 
making its sessions less frequent and by setting a time 
limit on each session. Now in most of the states out- 
side of the Northeastern ones, which cling to annual 
sessions, the rule is to have a regular session once in two 
years. In Alabama and Mississippi the interval has been 
made four years. Sessions are limited sometimes to 
sixty, sometimes to ninety days or longer. The extreme 
limit has been reached in Alabama, where a regular session 
of fifty days may take place once in four years. No 
limitation has been set upon the governor's power of 
calling special sessions, which may pass laws only upon 
subjects referred to in the call. In those states in which 
regular sessions are infrequent, special sessions are corre- 
spondingly plentiful. It is by no means uncommon 
for a governor to call a special session immediately follow- 
ing the regular one, in order to finish the work which 
could not be concluded within its straitened limits. It 
is worthy of remark that the Massachusetts legislature, 
which does perhaps the most thorough work of any, meets 
annually in January and sits at least until June. The 
advocates of the limited session imagined that when a 
time none too long for the transaction of absolutely 
necessary business was all that was allowed, the legisla- 
ture would attend to that necessary business and indulge 
in no mischief. Now, any one at all familiar with the 
conduct of legislative bodies knows that the time to slip 
through some measure which will not stand the light of 
day is in the last days of the session, when each member 
is too busy with his own affairs to scrutinize the schemes 
of his neighbors. But under the limited-session plan, the 
whole session is its last days. Hence as a matter of fact 
these restrictions upon the activity of the legislature have 



THE LEGISLATURE 125 

had no effect in stopping bad bills and they have had 
disastrous effects in preventing the proper consideration 
of the more important measures. 

In all the states except Illinois, the members of both Apportion- 
houses are elected one from each of the senatorial and j^^j^jati e 
representative districts into which the state is divided, districts 
It is the universal practice that they must be inhabitants 
of the district -which they represent. The districts from 
which the members of the lower house are elected are 
usually divisions of the senatorial districts. It is common 
to use the county unit as a basis for forming these dis- 
tricts. In some states, as New York, there is a rule that 
each county must have at least one member of the lower 
house, which results in giving the smaller counties more 
representation than their population would warrant. Of 
course, wherever county lines are followed, it is impossible 
to have the districts entirely uniform, even when an 
honest endeavor is made to have them so. 

About one third of the states provide for a reapportion- The gerry- 
ment, after each census, into districts as nearly as possible ^^^^^^ 
of the same size as to population. These periodical re- 
apportionments are the occasion of some of the most dis- 
graceful political scheming of which our legislatures are 
capable. It is doubtful if there has ever been an honest 
apportionment. Invariably the political party in control 
of the legislature takes advantage of the situation to ar- 
range districts which will enable it to elect more than its 
share of the members of the two houses. The personal 
interests of the members also are consulted, to the detri- 
ment of the public good, since few men are so patriotic 
as to consent to destroy their own districts, and conse- 
quently their chance of reelection. Most of the consti- 
tutions require that the districts shall be of contiguous 
and compact territory, but even with this restriction 



126 STATE GOVERNMENT 

much that is unfair is perpetrated. Sometimes even the 
conventions which have framed state constitutions have 
indulged in these ''gerrymanders." The New York con- 
vention of 1894, for example, provided that no county 
should have more than one third, and that no two counties 
separated only by public waters should have more than 
one half, of the total number of senators. As a matter 
of fact the counties of New York and Kings (Brooklyn) 
have already more than hah the population of the state. 
Discrimination was also made in favor of the rural counties, 
by requiring one assemblyman from each county. Still 
greater inequalities exist in Connecticut and Vermont, 
where through the maintenance of a system of town rep- 
resentation which happens to serve the interest of the 
dominant political faction, one member represents a 
few hundred while another represents many thousand 
constituents. Proportional representation has been often 
suggested as a remedy for these abuses, but no state 
except Illinois has ever put into effect any such system. 
The per- The personnel of the two houses shows a higher level 

sonnei of q£ ability and experience in the senate than in the house. 

the legisla- -^ ^ i r 1 1 1 

ture Many men are promoted from the lower to the upper 

house. While the salary is the same, there is an air of 
solid prosperity among the senators which is rather lack- 
ing among the representatives. Very few laboring men 
find their way into the senate. On the other hand, their 
presence in the lower house is by no means unusual. In 
both, approximately fifty per cent are lawyers, the only 
difference in that respect being that the lawyers of the 
senate evidently earn larger fees. The remaining mem- 
bers of both bodies are a varied assortment of middle- 
class Americans : farmers, merchants, editors, contrac- 
tors, real estate dealers, bankers, and a large consignment 
who, if they were entered properly in the manifest, would 




The state assembly chamber, St. Paul, Minnesota. 




The state senate chamber, Columbus, Ohio. 



THE LEGISLATURE 127 

appear as "politicians." The senate farmer is more 
likely to be of the capitahst variety than the house farmer, 
and the same difference prevails in the other occupations. 

These men are fairly representative of the average Qualifica- 
intelligence of the community. They have mostly been ^°f,^„°^ 
trained in practical affairs which, if not of a magnitude legislator 
sufficient to prepare them thoroughly for the management ^°L^| 
of the business of a great commonwealth, have sharpened 
their wits sufficiently for them to cooperate effectively 
with others in that management. They contain among 
their number a fairly large proportion of those who are 
not in poHtics "for their health." They sometimes used 
to bring to the capital for their amusement a dissolute 
crowd of "hangers-on," but that is now happily less fre- 
quent. On the whole, they are not so bad as they might 
be nor so good as they ought to be. The majority are 
well-intentioned, hard-working men, and they strive very 
earnestly during the time they are at the capital to give 
the best they have to the service of the people. All too 
rarely do they have much to give. It is sometimes the 
unfortunate fact that the ablest men in the body are not 
the most pubhc-spirited members. It is usually possible 
to count on one's fingers the men who in both character 
and abihty are really well qualified for their work. The 
struggles of these men with the adept rascals of the body 
for the control of the honest but dull majority is the story 
of well-nigh every legislative session. On the whole, 
while the personnel of the legislature is not as unrehevedly 
black as it has been painted by some observers, there is 
great room for improvement, which must begin with 
active interest by every honest citizen in the election of 
good legislators. 

To bodies thus constituted are intrusted powers of 
lawmaking more numerous and more important than to 



128 STATE GOVERNMENT 

Powers of any other agency of government in the United States. 

ture ^^^ *" Congress has only certain powers, very strictly defined 
by the Constitution of the United States. All other 
powers, except such as are specifically forbidden to the 
states by that instrument, belong to the states and, save 
for the limitations of their constitutions, to the state 
legislatures. City governments are the mere creatures 
, of the state, and while in a few states constitutional pro- 
visions give them a certain degree of independence of the 
legislature, it is still substantially true that every power 
which they exercise is the gift of the legislature. In most 
states the legislature may even abolish them as self- 
governing communities. What is true of cities is true 
in even greater degree of counties, townships, and 
towns. 

Perhaps the greatest power possessed by the legislature 
is that of determining the laws which affect the ordinary 
relations of one citizen with another, — such as the law 
relating to contracts between individuals, the special rules 
relating tO' corporations, the law regulating the use of bills 
of exchange and notes, the law fixing the liability of one 
individual for injuries inflicted upon another or upon his 
property, the law affecting the sale or exchange of com- 
modities, and the rules for the sale and descent of prop- 
erty. There is not a citizen however humble who has 
not occasion to bless or curse such laws, according as they 
are good or bad. Next in order come those laws which 
define crimes, or in other words, those wrongs which 
society sets itself deliberately to punish. Closely allied 
to these two sorts of lawmaking is the power which the 
legislature has to prescribe the rules which shall be fol- 
lowed in the trial of civil and criminal cases. 

The legislature also has the power to pass such laws as 
may be necessary for the protection of the lives, health, 



THE LEGISLATURE 129 

and morals of the people, even when such laws deprive 
citizens of some of the rights guaranteed them by the 
Constitution of the United States. This is known as 
their poHce power. They may create officers to carry 
out such laws and any others which they may enact. 
They determine the number and the compensation of 
state officials in so far as these matters are not determined 
by the Constitution. No taxes can be laid or appropria- 
tions of money made without their consent, and in this 
way alone every other organ of the state is at their 
mercy. It would, indeed, be easier to say what they 
cannot than what they can do, as they are held to 
possess all possible powers except such as are expressly 
forbidden them by the Constitution of the United States 
and of the state. 

We have discussed in an earlier chapter (Chapter VII) Limitations 
the Hmitations imposed upon their power by the United °j Rights 
States Constitution. The earliest state constitutions 
contained, as we have seen, what were known as "Bills 
of Rights," which placed beyond the reach of the legis- 
lature what were considered to be the more fundamental 
rights of man, — such as the right to be unmolested in 
one's life, liberty, and property, except by due process 
of law; the right of trial by jury; the right to speak or 
print without previous censorship; the right of petition 
and assembly; the right to bear arms, etc. Frequently, 
also, there were prohibitions of ex post facto laws, bills 
of attainder, and other forms of legislative activity which 
the colonists had found troublesome. Such a Bill of Rights 
was at first almost the only limitation imposed by the 
state constitution on the power of the legislature. In the 
later documents it still remains among the more impor- 
tant restrictions. 

The changes in economic and social conditions since 



I30 STATE GOVERNMENT 

the beginning of the nineteenth century have much 
altered the effect of some of these provisions. Take, for 
example, the one first mentioned. Originally intended 
as a protection for the weak individual, it has become the 
almost impregnable bulwark of corporate oppression. 
The courts have interpreted ''due process of law" in such 
a way as to prohibit practically all changes in the rights 
or liabilities of individuals or corporations, even by the 
most solemn action of the legislature. A freedom of the 
use of property which in individuals is perfectly harmless, 
may in the case of great corporations controlling vast 
aggregations of capital be highly dangerous. This clause 
of the Bill of Rights, however, stands in the way of their 
proper regulation.^ 
Other re- The later constitutions, as a result of popular distrust 

strictions Qf ^j^g legislature, have been made so long and detailed as 
to include many matters which are thereby withdrawn 
from the jurisdiction of the legislature. Certain other 
restrictions on the power of the legislature have been 

i"Take the Braceville Coal Company Case (127 111. 66), in which the 
Supreme Court of Illinois held that a law requiring the payment of wages 
weekly by a certain class of corporations violated the liberty of and denied 
the equal protection of the laws to the corporations affected. This, in the 
face of the well-known fact that the deferred-wage systems of many cor- 
porations reduce their employees to a condition of practical peonage. The 
interpretation of 'due process of law' has been equally productive of in- 
justice. The most flagrant instance, perhaps, is the decision in Ives vs. 
South Buffalo Railway Company (201 N. Y. 271). The legislature of New 
York had adopted an act providing for the payment of compensation by 
employers to employees for injuries received in certain hazardous occupa- 
tions, without reference to the negligence of either party. The Court of 
Appeals declared unconstitutional this change in the basis of liability for 
damages, on the grovmd that it deprived the railway company of its prop- 
erty 'without due process of law.' The law had been solemnly enacted. The 
question of whether anything, and if so how much, was to be paid as damages 
was to be settled by a judicial process. There was no arbitrary seizure of 
any one's property, merely a new burden put upon property; and to do 
this in any way whatsoever was, in the opinion of the court, not due process 
of law. If men or corporations can acquire by long usage a property right 
in a given liability for damages, the law has reached an alarming condition 
of fixity." — T. H. Reed, Government for the People, p. 165. 



THE LEGISLATURE 13 1 

added from time to time.^ The most important is that 
against special legislation. There are many matters 
which, affecting only a particular locality, individual, or 
group of individuals, can be dealt with best by a law not 
of general application. The power to pass such laws 
is capable of great abuse, and its capabilities in this di- 
rection were in many instances strained to the utmost. 
The result is that almost every state now forbids special 
and local legislation on certain subjects set forth at length 
in its constitution. We shall see that this sort of re- 
striction is especially important with regard to the forma- 
tion and control of city governments.^ 

SUGGESTIONS FOR FURTHER STUDY 

The best single reference is Beard, pp. 516-532. See also his 
Readings, pp. 457-466. Orth, Samuel P., Our State Legislatures, 
"Atlantic Monthly," December, 1904 (also in Reinsch, Readings 
on American State Government, pp. 41-56), is a most illuminating 
discussion of the personnel of the legislature. Bryce, chs. xl, xliv, 
and xlv, will be found helpful and suggestive in connection with this 
and the following chapters. See also Reed, pp. 83-86. 

lAt one time several states and many localities rashly appropriated 
public money or lent the credit of the state to assist railroads and other 
business ventures. Unfortunately they were in some instances brought to 
the verge of bankruptcy amidst circumstances^ of great scandal. As a result, 
in the new constitutions a provision such as this not infrequently occurs: 
"The legislature shall have no power to give or to lend, or to authorize the 
giving or lending of the credit of the state, or of any county, city and county, 
city, township ... in aid of or to any person, association or corporation." . . . 
(Constitution of California, Art iv, Sec. 31.) Appropriations for sectarian 
purposes have also been specifically forbidden, as have a variety of practices 
peculiar to particular states. 

2 The vigor of such restrictions is mitigated by the practice of "classi- 
fication." Laws to be "general" need not apply to all persons and all cir- 
cumstances. The word "general" comes from genus and relates to a 
whole "genus," or kind, or in other words to a whole class or order. Hence 
a law which affects a class of persons or things less than all, may be a general 
law. Sometimes the classes are very minute and the distinctions drawn 
between them are of a hair-line character. How far the legislature can go 
in this direction depends on the courts. An extreme example of classifica- 
tion is that employed for counties in California, where there are fifty-eight 
classes, one for each of the fifty-eight counties of the state. 



132 STATE GOVERNMENT 

Most states publish a manual of the legislature, which, besides 
the rules of both houses, gives a brief biography of each member, 
the legislative districts into which the state is divided, etc. (Apply- 
to the secretary of state for a copy.) Study with great care the terms 
qualifications, districts, etc., of your own legislature, and the char- 
acter of its members. Tables showing salaries, terms, sessions, etc., 
of state legislatures may be found in the World Almanac. 

For the use of teachers, see Reinsch, P. S., American Legislatures 
and Legislative Methods, pp. 126-158 and 196-227. 

Topics : 

To find out and tabulate the age, occupations, education, and 
previous political experience of the members of the legislature 
of your state will occupy the attention of several students. 
The restrictions imposed by the constitution on the legislature 
will also furnish several topics. 



CHAPTER XII 
THE PROCESS OF LAWMAKING 

The making of laws is, for the uninitiated, shrouded Amysteri- 
in mystery. The average person of inteUigence is satisfied ®^^ process 
to know that laws are produced in some incomprehensible 
manner by the legislature. Even a thorough study of the 
rules of the legislative bodies will not explain the real in- 
wardness of lawmaking. It is the purpose of this chap- 
ter to describe how laws are really made. 

It is obvious upon a moment's reflection that no con- Must origi- 
siderable body of men — such a body, for instance, as ?^^P .^**^ 
composes the typical state legislature — can sponta- small group 
neously come to agreement on any but the simplest of 
propositions. Now laws are seldom simple either in 
their purpose or in the language in which they are ex- 
pressed. Frequently they cover many printed pages 
and deal in great detail with complicated and abstruse 
matters. It is clear, then, that laws must originate with 
individuals, or at the most with very small groups of men 
who have given close attention to the same subject. Of 
course, every member prepares and introduces bills on 
those subjects in which he may be specially interested. 
Often measures are prepared by private individuals or 
organizations interested in their passage and then given 
to some member of the legislature to introduce. The com- 
placency of legislators in thus accepting bills for introduc- 
tion has become proverbial. It is not unusual for them 
to father bills which they do not understand or have not 
even taken the trouble to read. Besides the bills of pri- 
vate origin there are the administration or party measures, 

133 



134 STATE GOVERNMENT 

usually prepared by some of the more experienced legisla- 
tors or by state officers. More rarely a bill will be pre- 
pared by a committee as a substitute for some measure 
before them, and occasionally a very important matter is 
referred by the legislature to a "hold-over" committee 
to work up in the interim between sessions. 
Legislative There can be no guarantee that measures so variously 

bu^eaus^ originated are properly drafted. They are drawn in 
most cases by amateurs, who may not understand the 
subject which their legislation will affect nor the way in 
which its language will be construed by the courts. 
The result is that we have on the statute books of all our 
states a great many loose, ineffective, and even positively 
pernicious laws. The most significant effort to correct 
this evil was begun with the establishment by Wisconsin, 
in 1 90 1, of a ''Legislative Reference Department" under 
the direction of the board of state library trustees. This 
department, very competently manned and working in 
close connection with the University of Wisconsin, makes 
special investigations of the subjects which are to be 
treated by the legislators. It has on hand in convenient 
form information for every member, from the man who 
wants material for a five-minute speech to the man who 
is preparing an important and complicated measure. It 
also undertakes to draft bills to the order of any member, 
thus insuring that the bills introduced shall be satisfactory 
in form as well as in matter. Similar departments which 
have been established in other states have done much to 
improve the character of legislation, and on the whole 
the outlook for improving by this means the quality of 
legislation is bright. 

We have seen that the initiation of bills is in the hands 
of individuals, frequently of private individuals. The 
part of the legislature in lawmaking is not to originate, 



THE PROCESS OF LAWMAKING 135 

but to criticize and eliminate. To secure a careful and Legislative 
honest exercise of this function is the object of the pro- Procedure 
cedure of lawmaking as prescribed in constitutions, 
statutes, and rules of legislative bodies. This procedure 
is pretty much the same in every state, so that one de- 
scription may serve for all. 

Bills are ordinarily introduced by dropping them into Introduc- 
a box or handing them to a clerk, — in other words, by ^^^^^^ ^* 
putting them into the custody of the house. Introduc- reference, 
tion from the floor is still possible and is used to a con- ^ printing 
siderable extent in some states. At the appropriate 
period in each daily session, the bills handed in are read 
by title by the clerk and referred by the presiding officer 
to a committee. The reading of the title by the clerk is 
called the ''first reading" of the bill, and all bills are as 
a matter of course "read a first time" and referred to a 
committee for detailed consideration. Before the bill 
actually goes to the committee, it is printed and placed 
on the files of the committee and of each member of the 
house. The official copy of the bill is put in a jacket 
with blanks for noting its progress, and retained by the 
clerk. An entry of the title of the bill and its reference 
is made in the journal. The bill is given a number, 
which is printed at the head of the bill and used afterwards 
to identify it. 

Each house is divided into a number of standing com- The com- 
mittees, to which bills bearing on particular subjects °"t*ee 
are referred. The number of committees varies from 
state to state, — the largest number in any one house 
being sixty-eight in the lower house of Kentucky, and the 
average about forty. It is usual for each house to have 
its own set of committees, quite independent of the com- 
mittees of the other. The senate committees are in 
general much less numerous than those of the lower house. 



committees 



/ 



136 STATE GOVERNMENT 

In several states, however, considerable use is made of 
joint committees. Massachusetts and Connecticut use 
them almost entirely. The advantage of the joint com- 
mittee is in the saving of time necessarily lost in putting 
the same bill through two committees, and in the lessened 
chance of the two houses taking divergent views with 
regard to important legislation. Committees are always 
made up of an odd number of persons, and their numbers 
vary from three to over twenty. Every legislator is a 
member of at least one committee. 

The work of In every legislative body many more bills are intro- 
duced than can by any possibihty be considered. It is 
not unusual for over twenty-five hundred measures to be 
brought in during a single session of a state legislature. 
Some method has to be employed to sift the good from 
the worthless or bad and to determine what measures 
shall actually receive the consideration of the house as a 
whole. This is the work of the committees. Most bills 
"die" in the hands of the committee to which they have 
been referred. The chances of the ordinary bill are, 
however, very good once it has been reported favorably 
by the committee. Toward the end of the session bills 
come from the committees in great numbers and much 
more often than not are adopted on the strength of the 
committee's recommendation. The committees, therefore, 
are arbiters of the fate of most bills. 

Hearings The committee usually gives to any party interested in 

a bill which is before it an opportunity to be heard. These 
committee hearings are one of the most valuable of the 
processes of legislation. Least important, though most 
spectacular, are the great pubUc hearings conducted by 
organizations pushing or opposing bills of wide popular 
interest, such as those affecting the liquor question. 
These sometimes bring to the capital many hundreds of 



THE PROCESS OF LAWMAKING 137 

friends or opponents of the measure in question, who 
crowd the building and hsten to not a httle impassioned 
oratory. Except as an expression of pubhc sentiment, 
wherein they may be positiyely deceptive because of the 
ease with which a crowd can be "worked up," they are 
resultless. Little light or wisdom is forthcoming from 
excited speakers on such occasions. The ordinary hear- 
ing, however, serves the double purpose of informing the 
committee of the views of the interested parties and of 
the opinions of experts as to the details of the measure. 
The use of hearings has been carried farther in Massa- 
chusetts than anywhere else. There hearings are habit- 
ually attended by many of the leading men of the state, 
who are listened to with respect. They sometimes have 
gone so far as to take a vote of those present, as a guide 
to the deliberations of the committee. There are many 
who say that the excellence of Massachusetts legislation 
in numerous lines is due to the thoroughness of the hear- 
ings out of which it is evolved. 

Committees do not act at hearings or public sessions. Committee 
They deliberate upon and determine the fate of bills in secrecy 
''executive" or private sessions. Sometimes they go 
through the bills on their files in order, and such as they 
are not ready to vote upon are ^'passed." At other times 
members of the committee call up particular bills for con- 
sideration. The chairman of a committee has great 
power, in that he can usually insist on a measure being 
voted on or permit it to be '' passed" indefinitely. Of 
course this is not true when a strong majority of the com- 
mittee are opposed to him, a situation which is not likely 
to occur. The degree of secrecy of these meetings of a 
committee differs from state to state. In some it is very 
strict, as for example in New York, while in others, like 
CaUfornia, newspaper reporters are permitted to be 



of the 
committees 



138 STATE GOVERNMENT 

present and the votes of the individual members are 
always given out. The latter practice is infinitely better 
than the former. The best safeguard of good conduct on 
the part of public officials is that they should never be 
able to act in the dark, where they may escape responsi- 
bility for the results which follow. If a committee of 
eleven members can decide the fate of a bill in absolute 
secrecy, they may individually tell their constituents any 
story they please as to their votes in the committee, with- 
out fear of detection. In this way the committee may 
become a dark corner in which legislative crimes are 
committed. 
The report The great majority of bills, as we have seen, die in 
committee. They die there because the committee never 
acts upon them. In some legislatures the committees 
practically never report any bills except those which 
they recommend for passage. A committee may, however, 
report a bill with a recommendation that it do not pass, 
or without any recommendation at all. And in some 
legislatures such reports are not uncommon. The com- 
mittee may also report a bill with amendments. The 
report of the committee is made by the chairman and 
may contain its recommendations as to several bills. 
The proper entries are made on the journal and on the 
official copy of the bill, and if there are no amendments, 
its number and title are hsted on what is known as a 
*' file " or " calendar " in the order of its report. If amend- 
ments have been made, it must be reprinted and is listed 
only when it returns from the printer. The file or calen- 
dar which is printed and supphed to each member is the 
basis for the order in which the bills are next taken up by 
the house itself. A committee may by vote of the house 
be discharged from further consideration of a bill and the 
bill thus be brought directly before the house. This is 



THE PROCESS OF LAWMAKING 139 

very rarely done. The whole virtue of "the committee 
system consists in respecting the committee's decisions; 
otherwise they could not efficiently help in sifting measures. 

The Speaker of the house of representatives always Power of the 
appoints the committees in the lower house. In the speaker 
senate they are usually appointed by the president (fre- 
quently the lieutenant-governor), but sometimes by some 
other person designated by the body, or by the body it- 
self. His power of appointing committees gives great 
power to the Speaker. As the important work of the 
legislature is done in committee, the fortunes of the 
individual legislator are determined by the committee 
appointments the Speaker gives him. He can also in- 
fluence legislation by the construction of the committees. 
The Speaker, assisted in some cases by the leading men 
of the body, his associates on a rules committee which 
controls the order of business, or the chairmen of impor- 
tant committees, directs the poHcy of the house. The 
party caucus, a meeting of the members of a particular 
party, is sometimes used to decide the party attitude 
toward a measure. A member attending a caucus is in 
honor bound to abide by its decision. 

We have seen that, coming from committee, a bill is Progress of 
placed upon a Ust of the measures, known as a file or cal- ^^j^^*^' 
endar. The next stage is known as the "second reading," 
and the calendar on which the bills are placed on coming 
from committee is known as the "second-reading cal- 
endar." When the house reaches the time allotted in its 
order of business for that purpose, the clerk begins calling 
the bills on the second-reading calendar. If the member 
who introduced the bill is not ready to have it come up 
at that time, he asks permission to have it "passed," re- 
taining its place on the calendar. The rules of most 
legislatures permit of "passing" only a time or two, and 



I40 STATE GOVERNMENT 

if not then voted on the bill goes to the bottom of the list. 
If the bill is not ''passed," the question before the house 
is, "Shall the bill be read a second time?" and a majority 
of those present and voting is sufficient to advance the 
measure to the next stage, that of third reading or final 
passage. It is placed on a third-reading calendar and 
brought to a vote in the manner described above for 
second reading. In many of the states a majority of all 
the members elected to the house must be obtained, in 
order finally to pass the bill. It is customary to require 
that the final passage of bills be by roll call, each member 
answering ''aye" or "no" as his name is called by the 
clerk. At other stages the "ayes" and "noes" may be 
required by a very small proportion of the members, — 
usually one fifth or one tenth, but sometimes even smaller, 
as in the California assembly, where three are a sufficient 
number for this purpose. 
The three The custom of having three readings of a bill, which is 

readings ^^ basic principle in our legislative procedure, grew up 
in the English Parliament in the days before printed bills 
were even dreamed of. It was intended to give protec- 
tion against the hasty passage of a law before the sober 
judgment of the house might become aware of what was 
involved in the measure. With the introduction of 
printing, the necessity of actual readings disappeared, 
but they were retained, as stages in the progress of a bill, 
for the purpose of giving pause to the hasty or ill-con- 
sidered creation of laws. For the protection of the public, 
many state constitutions require that there shall be three 
readings on three separate days, some method being 
provided for avoiding this restriction in case of emergency. 
The readings have, however, become purely fictitious. 
Even in those states where a provision for the actual 
reading of bills still lingers in the constitution or the rules 



THE PROCESS OF LAWMAKING 141 

of the legislature, the clerk mumbles over a few sen- 
tences or simply reads the last section before going on 
to call the roll. A member, however, who desires to 
obstruct the work of the house may by his objection 
force the bills to be read in full. It is to be hoped that 
such an opportunity for obstruction will be everywhere 
removed. 

It is worthy of note that a great part of the bills passed Unanimous 
in our legislatures are passed by unanimous consent, the <^°^^®^* 
roll being called only as a matter of form. In the latter 
days of each session the consideration of all measures on 
the calendar is an obvious impossibility. Unanimous 
consent is then resorted to, to pass bills out of their order 
and under a suspension of the rules. As each member 
has bills which may require unanimous consent, he will 
not object to the bill of another, bad though he knows it 
to be, for fear of the objections which that other member 
might raise to his bills. The only escape from this evil 
seems to be to give to some committee of the house the 
power given in the New York assembly to the rules com- 
mittee, to make up the working calendar during the clos- 
ing days of the session. Experience has proved that 
there is grave danger in the possible despotic use of this 
power. 

Having passed its third reading, the bill is, after being The bill 
signed by the presiding officer, ready for transmission to *^*®^ 
the other house. There it passes through the same 
process as in the house of its introduction. The only 
exception to this rule is that when a bill exactly identical 
has made some progress in the second house, it is possible 
to substitute for it the measure just received from the 
other house. This makes it a common practice to intro- 
duce bills in both houses with the idea of gaining time. 
If a bill becomes a law, it is usually known by the name 



142 STATE GOVERNMENT 

of the member who introduced the bill which actually 
passed both houses. It is not enough that identical bills 

SBNATB, No. 270. 




STATE OF NEW JERSEY, 



N Act to authorize private secondary schooH and institutions of learning incorporated 
and existing under and by virtue of an act of the Legislature of New Jersey to elect 
one or more non-resident trustees; 

1 Whereas, Certain secondary schools and institutions oi learning have been incor- 

2 porated and exist under and by virtue of an act of the Legislature of Nevr 

3 Jersey entitled "An act to incorporate societies for the promotion of learning 

4 (Revision)", approved April ninth, one thousand eight hutvJred and seventy- 

5 five, and the several acts supplemental thereto and amendatory: thereof, which 

Title and opening lines of a legislative bill as finally passed and ready for 
delivery to the governor for his consideration. 

pass each house, the same bill must pass both. When 
a bill has passed one house, it is reprinted, sometimes on 
larger paper and with suitable provision for the signatures 
of the presiding officers. This is known as the "engross- 
ment" of the bill. 
The part of After the two houses have acted upon it favorably, the 
bill is delivered to the governor, who, usually by his 
private secretary, gives a receipt stating the time the bill 
was received. This is important, because the governor 
has ten days, and in some of the states less time, in which 
to sign the bill or return it to the house in which it origi- 
nated, with his reasons for not signing it. In determin- 



the governor 



THE PROCESS OF LAWMAKING 143 

ing this period, the day of delivery and Sundays are not 
counted. In many states, in order to give the governor 
a fair chance to consider the bills which are rushed through 
in great numbers in the last days of the session, he is 
given a period of sometimes as long as thirty days in 
which to sign bills which reach him in the last ten days 
of the session. These latter bills fail unless the gover- 
nor signs them ; whereas the bills which reach him earUer 
become law if he does not return them within the time 
Hmited by the constitution. When the governor signs 
a bill, he delivers it to the secretary of state, and if it be- 
comes a law because of his failure to act upon it, he is 
obhged to certify that fact to the same officer. The bills 
which he vetoes by returning them with his reasons to 
the house in which they originated, are delivered into the 
custody of the house and become a part of its records. 
When a bill reaching him at the close of the session is 
permitted to die for lack of his signature, he is said to 
have ''pocketed" it, and the privilege of so killing it is" 
called the ''pocket veto." A few states do not allow 
this, but require the bills to be returned to the originating 
house at the beginning of the next session. 

Bills seldom complete their course through the legis- Amend- 
lature without amendment. They may be amended at 
practically any stage. A committee may amend the bills 
before it, and this power goes to the extent of drawing 
substitutes for one or more bills which have been referred 
to it. They may be amended on second reading and on 
third reading, except that in the latter case the provision 
in force in several states, that the bill must be printed and 
on the desks of the members for a certain time before 
final passage, necessitates a delay of varying length. 
After each amendment, the bill must be reprinted as 
amended, and sometimes amendments are resorted to for 



ments 



144 STATE GOVERNMENT 

the simple purpose of wearing out the friends of the bill 
or preventing its passage before adjournment. If the 
senate amends a bill of the lower house, or vice versa, 
the bill, with the amendments, goes back to the house in 
which it originated, which votes either to concur or not to 
concur in them. If it votes to concur, that ends the matter 
and the bill goes to the governor. If it votes not to concur, 
the bill goes back to the house which made the amendments 
and it votes on the question of receding from the amend- 
ments. If it votes not to recede, a conference committee 
is then named by the presiding officer of each house, which 
reports to the two houses its recommendations as to what 
action should be taken to bring them into harmony. Its 
report is usually adopted. After a bill has gone to the gov- 
ernor, there is no further opportunity for amendment. 

15 acknowledgment and proof of deeds for real estate in the State of New Jersey, 

16 together with a true copy of the resolution passed by the board of trustees or other 

17 governing body, certified by the secretary or clerk thereof, in the office of the Secre- 

18 tary of State. 

1 2. Immediately upon filing said acceptance and copy of said resolution, the 

"2 board of trustees oi: other governing body of said institution may contain one or 

3 more non-resident natural persons otherwise qualified to.act and duly elected in the 

4 manner in which the members of said board of trustees or other governing body 

5 now are. 

I 3. This act shall be deemed a public act and shall take effect immediately 







Ending of the legislative bill begun on page 142. The governor's signature 
makes the act a law, ready for filing with the secretary of state. 



THE PROCESS OF LAWMAKING 145 

The discussion which most bills receive from the house The char- 
as a whole is rather perfunctory. A brief explanation ^*^*^^°^ 
from the member introducing it is usual, and in a majority 
of cases the house is then ready to vote. Certain meas- 
ures, especially those involving political issues or matters 
in which the public is greatly interested, call forth a 
good deal of speech-making. A large part of it, however, 
is for the purpose of enhancing the speaker's reputation 
with the galleries or with the "folks at home." Very 
little of it is for the genuine purpose of influencing the 
members themselves. Many of the members study the 
bills conscientiously, making much use of the state library 
or of the legislative reference bureau. They talk among 
themselves in the lobbies and about the hotels, and a 
good deal of convincing argument is brought into play 
in these conversations. They listen to and sometimes 
adopt the ideas of the "lobbyists," persons who attend 
upon the sessions of the legislature for the purpose of 
advancing their own views or those of the interests employ- 
ing them. The legislative chamber, the committee rooms, 
and the surroundings of the legislature are a vast melt- 
ing pot for ideas on legislation. Of all the forces at work, 
however, formal discussion on the floor of the house is 
the least effective. Practically every member has made 
up his mind on every important measure before the debate 
begins. No sane person, however, would advocate abridg- 
ing in any way the freedom of discussion which prevails. 
Its possible value as a means of protest against mis- 
government is beyond calculation. 

The halls in which our legislatures meet are, in general, FacUities for 
capacious and dignified. Indeed, size and beauty have ^°^^ 
been sought at the expense of efficiency. Many of them 
are so large that only trained public speakers can make 
themselves heard throughout their whole extent. The 



146 STATE GOVERNMENT 

Speaker's desk, elevated above the floor, stands opposite 
the main entrance. Below it are the desks for the clerks, 
and usually in a good location toward the front are ac- 
commodations for newspaper reporters. Each member 
has a desk, which is assigned each session by lot or on the 
basis of length of service. At these desks the members 
read, write, or dictate their letters and do other things 
which detract from their attention to what is going forward. 
Back of the chairs, but a considerable distance from the 
rear wall, is a railing. Immediately in front of it are 
chairs reserved for the friends of members or persons 
who may be granted the privileges of the floor by the 
house. The space back of the rail is known as the 
"lobby," whence the term ''lobbyist." Large galleries, 
open to the public, insure publicity to the proceedings. 
The galleries and lobbies may, however, as a safeguard 
against disorder or intimidation on the part of the spec- 
tators, be cleared at any time on the order of the presid- 
ing officer. Numerous committee rooms are provided 
in the capitol building, but they are usually insufficient 
easily to accommodate the crowding activities of the 
legislators. The chairmen frequently use their committee 
rooms as offices ; the other members have none. 

Besides the Speaker and the clerk and his assistants, 
each house employs a sergeant-at-arms, who is the 
Speaker's agent in preserving order and in serving war- 
rants for the apprehension of absent members, or sub- 
poenas for witnesses desired to appear before the house or 
its committees. He also acts as paymaster. Each com- 
mittee is, in the richer states, supplied with a clerk. A 
corps of stenographers, not numerous or well organized, 
is also supplied for the use of members. Some of the 
worst scandals in legislative annals have occurred in con- 
nection with the distribution of this ''patronage." All 



THE PROCESS OF LAWMAKING 



147 



tional safe- 
guards 
against 
legislative 
misconduct 



together, we do not provide our legislators with the 
equipment and assistance with which business corpora- 
tions find it worth while to supply their employees. 

For a long time the procedure of legislatures was en- Constitu 
tirely unregulated except by their own rules. The rules 
were imperfect, and even the slight protection they 
afforded was destroyed by the action of the courts in 
holding that a bill passed in violation of the rules was 
nevertheless a law.^ Many tricks were played upon the 
public. A bill would be introduced with a title which 
sounded innocent in the extreme, and slip through, al- 
though the body of the measure was something entirely 
different. Bills would be introduced containing strange 
and irrelevant provisions. Appropriations for unworthy 
objects would be tacked upon others highly meritorious. 
Amendments of unexpected effect would be introduced 
at the very end of the session. Bills which would never 
have stood the light of publicity would be introduced at 
the last moment and hurried through all their stages by 
unanimous consent. To guard against these evils, many 
of the later state constitutions have contained provisions 
requiring : 

1. Bills to be read on three separate days. 

2. Titles to be expressive of the contents of the bill. 

3. Changes in existing law to be clearly indicated as 
amendments. 



1 The legal principle on which this decision was based should be noted, 
because it grew out of that principle of the separation of powers which we 
have previously seen characterized our early state constitutions. It was 
that the courts could not properly scrutinize the internal arrangements of 
a coordinate branch of government. The signature of the presiding officer, 
certifying that the bill had been duly passed, was conclusive on the judiciary. 
This principle makes possible one of the strange practices of legislative 
bodies. As the hour decided upon for final adjournment by resolution of 
the two houses approaches, if the work of the session is not completed, the 
clock is stopped and not started again until the house is ready to adjourn. 
It may legally remain quarter of twelve for hour after hour. 



148 



STATE GOVERNMENT 



The initia- 
tive and 
referendum 



Limitations 
of popular 
lawmaking 



4. But one item of appropriation to be included in a 
single bill, except the general appropriation bill. 

5. Bills to be printed before final passage. 

6. Yeas and nays on final passage. 

7. Bills not to be introduced in the latter part of the 
session except with the approval of house. 

A bill passed in violation of any of these provisions 
will be held void by the courts, because it conflicts with 
the constitution. 

There have been recently added to the existing processes 
of lawmaking in certain states the initiative and referen- 
dum. The first enables the people by petition to initiate 
directly measures which on receiving a popular majority 
at a subsequent election become a law. They may also 
suggest measures to the legislature which if not adopted 
must be referred to the people. The second enables the 
people by petition to cause the submission to themselves 
at an election of any measure passed by the legisla- 
ture. For this purpose all but a Hmited class of meas- 
ures do not go into effect until ninety days after 
passage. If a petition is filed against any one of them, 
the operation of the law is suspended until the next 
election, at which time the popular majority settles its 
fate.i 

To understand the proper Umitations of the initiative 
and referendum, we must go back to the principle laid 
down at the beginning of this chapter, that measures can 
never originate except with individuals or very small 
groups of individuals. If this reduces the legislature 
simply to a revising and criticizing body, how much more 
limited must be the legislative capacity of the great mass 

^The details of the provisions for the initiative and referendum vary 
very much from state to state, and it must be studied in the constitution or 
laws of your own state. The imderlying principles, however, are everywhere 
the same. 



THE PROCESS OF LAWMAKING 149 

of the people. In the very nature of things, the people 
cannot even revise and criticize measures put before them, 

— they can simply say yes or no. It is impossible, there- 
fore, to make direct legislation a substitute for lawmaking 
by representative assembhes. Direct action by the 
people can be valuable only as a check on the legislature, 

— a safeguard against misrepresentation. So under- 
stood, the initiative and referendum are very valuable 
aids to popular government. Looked at in this way, 
they are essential to complete democratic control. 

The referendum is clearly no more than a negative check. Use of the 
It is conservative in its tendency, preventing action rather ^nd^refer- 
than producing it. It is, of course, capable of being used endum 
against good as well as against bad measures, a point 
which some of its more earnest advocates forget. The 
fact that a small petition will hold up any measure for as 
long as twelve or fourteen months, irrespective of the 
ultimate decision of the people, must not be lost sight 
of. There is, however, little disposition to overuse the 
referendum. So far as constitutional amendments and 
a wide variety of state and local questions are concerned, 
it is a natural American growth, and the people have been 
accustomed to its processes for generations. 

The initiative, on the other hand, is far more radical. 
Any change in law or constitution can be made by it. 
It is no wonder, then, that everybody with an " ism " or an 
interest to advance uses the initiative. The extent of its 
employment in certain states is well illustrated by the Cali- 
fornia ballot of 1914, which included forty-eight proposi- 
tions to be voted upon, many of them relating to very 
complex or very trivial matters. The text of the amend- 
ments, and the arguments pro and con sent to each voter 
in accordance with law, made a considerable volume. 
There can be a ''long ballot" of propositions quite as 



150 STATE GOVERNMENT 

dangerous as the ''long ballot" of candidates. Abused 
in this way, the initiative may be productive of bad re- 
sults. It should be reserved for the passage of vital 
measures neglected by the legislature. If so reserved, it 
may be from time to time of inestimable service.^ 

SUGGESTIONS FOR FURTHER STUDY 

I. Legislative Lawmaking 

First-hand materials for the study of the legislature are abundant. 
Every legislature publishes its rules, either in the manual referred 
to in the suggestions for the last chapter or separately. These may 
be obtained from the secretary of state or the clerk of either house. 
Copies of bills may be obtained in the same way. It may be possible 
on payment of postage to have all the bills sent you at intervals 
during the session of the legislature. Finally, a visit to the legisla- 
ture during its session will be found very profitable by the class in, 
visuahzing its proceedings. A great deal of descriptive material 
can be obtained from the legislative reference bureau if one exists 
in your state. 

There are a multitude of good secondary references on this sub- 
ject. Ray, pp. 390-451, is exceptionally good. Beard, pp. 532-546, 
and Readings, pp. 466-487, are full of good material. Reinsch, P. S., 
Readings on American State Government, pp. 61-84, contains in con- 
venient form some very good articles. Reed, pp. 86-89, enumerates 
some of the deceptions formerly common in legislatures. Bryce, 
chs. xl, xliv, and xlv, will be found useful. 

For teachers : Reinsch, P. S., American Legislatures and Legis- 
lative Methods, pp. 159-195, 228-330. The latter reference especially 
covers matters which are nowhere else comprehensively discussed. 
McCarthy, Charles, The Wisconsin Idea, particularly pp. 194- 
232, is the work of a man who has given legislatures and legislation 
more scientific study than any other man in America. 

^ The Ohio constitution of 191 2 provides for the submission of a measure 
to the legislature on a very small petition. If the legislature amends or 
rejects the measure, an additional petition will secure the submission of 
the measure in its original shape to the people. This is probably the best 
possible form of the initiative for our American conditions. It gives a chance 
for amendment and adjustment of details restrained by the possibility of 
subnaitting the whole matter to the people. 



THE PROCESS OF LAWMAKING 151 

II. The Initiative and Referendum 

Bryce, ch. xxxix, gives a very illuminating criticism. Beard, 
pp. 461-469, and Readings, pp. 413-431, are useful. See also Reed, 
pp. 137-160. Lowell, A. L., Public Opinion and Popular Govern- 
ment, contains more up-to-date material than any other book. For 
extended first-hand material see Beard and Schultz, Documents on 
the State-wide Initiative, Referendum, and Recall. The pamphlets 
pubhshed in Oregon and Cahfornia and other states may be obtained 
on application to their respective secretaries of state. 

For teachers : Oberholtzer, E. P., The Initiative, Referendum, 
and Recall in America; Munro, W. B., The Initiative, Referendum, 
and Recall; Eaton, C. A., The Oregon System; Cleveland, F. A., 
Organized Democracy, pp. 273-355; Haines, G. A., People's Rule in 
Oregon, ''Pohtical Science Quarterly," vol. xxvi, p. 32, and People's 
Rule on Trial, "PoHtical Science Quarterly," xxvii, p. 18. McCall, 
S. W., Representative against Direct Government, "Atlantic," vol. 
cviii, p. 461, and Butler, N. M., Why Should We Change Our Form 
0/ Got'erwwew/ .? give the conservative point of view. Wilcox, D. E., 
Government by All the People, gives the radical point of view. 

Topics : 

The Legislative Reference Bureau (of your own state). 

Constitutional Limitations in Your State. 

Order of Business in Legislature. 

Passage of a Bill. 

Veto in Your State. 

Study the actual provisions of the constitution and laws of your 
own state, if it has the initiative and referendum; the char- 
acter of questions submitted and the results of the popular vote 
on them, using sample ballots, pamphlets, etc. 



CHAPTER XIII 



THE STATE JUDICIAL SYSTEM 



Power of 
the state 
courts 



Civil and 

criminal 

law 



We have seen that the object of the judicial depart- 
ment of government is to provide an orderly method for 
the settlement of those disputes which arise out of the 
relations of individuals and for the determination of the 
guilt or innocence of those who are accused of breaking 
the laws which the community has established for its 
protection. In this country, by far the larger part of 
both these tasks falls on the state judiciary. The judicial 
power of the United States is limited to those matters 
which are specified in the federal Constitution. That 
of the state includes some of these same matters, and 
everything else ; hence the state requires a more elab- 
orate system of courts than does the United States. 

When a court is engaged in settling disputes between 
individuals, it is exercising civil jurisdiction. It does 
this by protecting the rights of individuals, giving them 
damages or some other remedy for the wrongs which 
they suffer at the hands of other individuals. Every 
individual has the right to be free from personal injury 
or the restraint of liberty, and to possess and enjoy his 
property. Generally speaking, any invasion of these 
rights is a wrong which entitles the aggrieved person to 
appeal to the courts. When the wrong is of a character 
to affect the whole community, it is treated as an offense 
against the community, which seeks, not redress for the 
person offended, but punishment for the offender. Such 
offenses are called '' crimes" and the branch of law which 
defines them is known as ''criminal law. " A person who 

152 



THE STATE JUDICIAL SYSTEM 153 

is injured may forego the privilege of obtaining redress 
from the wrongdoer and may even stop the proceedings 
which he has begun. Where a crime has been com- 
mitted, the injured party has no power to avert the 
punishment of the offender by forgiving him. Sometimes 
the same act constitutes both a crime and a civil injury. 

For the disposition of these two kinds of business, the justices' 
states have been obliged to establish series of courts, ^°^^^ 
which bear a general resemblance to one another although 
they differ somewhat in details of organization and a great 
deal in their names. For the disposition of the smallest 
kind of cases, which are by far the most numerous, there 
exist courts of very limited authority. In the country 
they are usually held by justices of the peace, of whom 
there is at least one to a township. They may try civil 
cases involving not more than fifty or one hundred dollars, 
and petty misdemeanors, the punishment of which is a 
small fine or a few days in jail. Most of these cases are 
disposed of "summarily," — that is, without a jury, — 
but a jury, frequently of six instead of the traditional 
twelve men, may, in many states, be demanded by the 
accused in a criminal and less often by either party to a 
civil case. The justice of the peace usually has power to 
examine persons accused of more serious crimes and commit 
them to jail pending the action of the grand jury. In 
cities these duties are frequently divided between a munic- 
ipal court, which takes the civil cases, and a police or 
magistrate's court, which disposes of criminal matters. 
Justices of the peace are seldom versed in the law, and 
the system is coming to be recognized as a bad one. They 
are usually paid by fees and are sometimes the tools of 
the lawyers who bring cases before them. A few well- 
paid judges holding court from village to village through 
the county would much better serve the ends of justice. 



154 STATE GOVERNMENT 

The trial of the more important cases is intrusted to 
courts organized by counties or larger units. In most 
states there are county courts possessing civil and criminal 
jurisdiction. In some states this jurisdiction is unlimited 
as to the amount in controversy or the seriousness of the 
crime. In other states a still higher trial court, called 
a "superior court," ''circuit court," or, in New York, 
"supreme court," takes up the more important cases.^ 
The county court is sometimes known by that name, 
sometimes as the "court of common pleas," or "district 
court." Cases are tried in both classes of trial courts 
by a single judge and a jury. The privilege of a jury 
trial may be waived by the parties in a civil case, and 
there is no such privilege if the proceeding is in equity.^ 
Each trial court is provided with a clerk, who is frequently 
also the clerk of the county, although in some instances 
the clerk of the court is elected for that particular pur- 
pose or appointed by the judges themselves. It is the 
duty of the sheriff of the county to attend all sessions of 
the court within the county, either personally or by deputy, 
and to serve the "processes" or orders of the court. 

To each of the principal courts for the trial of criminal 
cases there is attached a public prosecutor. He is usually 

1 In New York, where this system exists, the county court has jurisdic- 
tion in civil cases involving two thousand dollars or less, and in all criminal 
cases where the charge is not murder, except in New York and a few other 
counties, where it includes even murder. 

2 This is almost the only reason for maintaining the old distinction be- 
tween law and equity, the two jurisdictions having now been fused in prac- 
tically all states. Formerly, in England and the United States law and equity 
were administered by separate courts. Equity grew up through the refer- 
ence to the king's chancellor of cases in which the law offered no prospect of 
justice. Equity recognized some rights denied by law, such as the right of 
the mortgagor to the value of the mortgaged property in excess of his debt. 
It gave especially through the writ of injunction an effective remedy where 
the law was practically powerless. For example, the law would give in 
the case of continuing injury, only damages up to the time of suit ; equity 
would forbid its continuance. 




Summary disposition of cases in a police or magistrate's court. 




A case being tried before a jury in a superior or trial court. 



THE STATE JUDICIAL SYSTEM 155 

elected by the voters of the county, but in some instances The district 
for a larger district. He is known as the "prosecuting * ^^^^y 
attorney," the 'district attorney," '* state's attorney," 
"county attorney," or "county solicitor." His functions, 
however, are much the same in all the states. It is his 
duty to investigate all crimes and make up his mind 
whether or not a prosecution should be begun. He then 
presents the case to the grand jury or brings it up di- 
rectly for trial by filing what is known as an "informa- 
tion." He conducts the trial of the accused person and 
ordinarily makes every effort to secure his conviction. 
His discretion, however, is very great, and he may decline 
to prosecute any case up to the time of its actual coming 
to trial. When a case is dropped in this way, it is spoken 
of as "nol prossed," from the Latin nolle prosequi. He 
may also, under a certain amount of control by the court, 
drop the prosecution of a case already begun. He is in 
fact a "quasi" judicial officer and should, although it is 
not always the case, be more interested in discovering 
the truth than in getting a conviction. The district 
attorney may in some states be removed by the governor, 
if he fails to perform his duty in enforcing the laws of the 
state. It is possible also for the governor to appoint a 
special prosecutor or deputy attorney-general to conduct 
the prosecution of particular cases where the district 
attorney is unwilling or unable to do his duty. 

Either party to a civil case, or the defendant in a crim- Appellate 
inal case, may under certain limitations appeal from the <^<*^"^s 
judgment of a justice of the peace to the county court. 
From a county or other higher trial court an appeal may 
be taken only on questions of law. The decision of the 
judge or jury as to matters of fact is final. These appeals 
usually go straight to the supreme court of the state, 
which is sometimes known as the "court of appeals" or 



156 STATE GOVERNMENT 

the "court of errors." In some states, however, inter- 
mediate or district courts of appeal have been created, 
whose decision is final in most criminal and many civil 
cases. In all appellate courts the decisions are rendered 
by several judges sitting together on the "bench." A 
majority is sufficient to decide. State supreme courts 
usually consist of from five to seven members. In some 
an appellant has the right to demand to be heard by a 
full court. In others less than the full court may render 
a decision, and occasionally, as in Ohio, the court may 
be divided into two permanent divisions. Each appellate 
court has a clerk, who is sometimes elected by the people 
and sometimes named by the judges. 
The selec- There has been a good deal of controversy in the United 
tion of States as to the best method of selecting judges. In the 

colonies the judges were appointed by the governor, 
except in Rhode Island and Connecticut, where they were 
elected by the legislature. Under the early state con- 
stitutions the judges were appointed by the governor with 
the advice and consent of his council in five states, elected 
by the legislature in seven, and elected by the people in 
one. Election by the legislature proved to be too much 
a matter of jobbery and log-rolling. While it still lingers 
in four of the first fourteen states, there is no disposition 
to copy it elsewhere. We have already commented upon 
the increase in the number of ofiices filled by popular 
election which came as part of the democratic evolution of 
our state governments. Every state west of the Alle- 
ghanies, except Mississippi, now elects all its judges by 
popular vote. Seven states in all intrust the power of 
making judicial appointments to the governor. 

Closely associated with the question of the selection of 
judges are the problems which arise in connection with 
their tenure and salaries. In Massachusetts, Rhode 



THE STATE JUDICIAL SYSTEM 157 

Island, and New Hampshire alone do judges hold office Tenure of 
for good behavior. In all the other states they are chosen \^-^^ * 
for definite terms of from twenty-one years for the supreme judges 
court of Pennsylvania to two for the supreme court of 
Vermont. The average for supreme courts is eight years, 
being brought up to that average by the long terms in a 
few states. In twenty-one it is eight or more, in eighteen 
it is six, and in the remainder a still shorter period. The 
terms of trial judges and justices of the peace are some- 
what shorter, corresponding generally .to the intervals 
between local elections. Judges are removable in all 
states by impeachment and in some by a joint resolution 
of both houses of the legislature. As a two-thirds majority 
of both houses is usually required for such a resolution, 
it is not in practice much easier to employ than the process 
of impeachment. The only advantage is that it can be 
used to remove a judge who loses his reason or becomes 
incapacitated by illness, without attaching to him the 
stigma of impeachment. As a matter of fact, judges are 
seldom removed by either of these means. In Oregon, 
Cahfornia, and Arizona a judge may also be removed by 
popular recall. The salaries of judges are low as com- 
pared with the earnings of successful practitioners at 
the bar. The salaries of supreme court justices vary 
from $14,200 paid to the chief justice of the court of 
appeals of New York to $2500 in Vermont. From $5000 
to $6000 is the usual amount. The judges of trial courts 
receive proportionately less, except in some great cities. 
The judges of the supreme court for the city of New York 
are better paid than any other judges in the United States, 
receiving $17,500 a year. Trial judges in Chicago receive 
$10,000. 

The method of selection, tenure, and salary of judges 
have had a great effect upon the character of our state 



158 



STATE GOVERNMENT 



The char- 
acter of the 
state 
judiciary 



Our judicial 
dilemxaa 



judiciary. The advocates of a highly paid appointive 
judiciary assert with justice that popular election, short 
terms, and low salaries have reduced the general average 
of our state judges below that which prevails in England 
and in the United States courts. It is true, especially 
for trial courts, that the judge is inferior in ability and legal 
knowledge to many of the attorneys who practice before 
him. The intellectual level of our highest state courts 
is, however, good. The dignity of the position attracts 
the better members of the bar, and its prominence forces 
the poHticians to nominate men who can stand inspec- 
tion. What Bryce calls ^'pecuniary corruption" seems 
very rare. Judges are more apt to be influenced by their 
social or political affiliations. On the whole, however, 
judges are freer from this sort of bias than one might 
expect from the frequency with which most of them have 
to go before the people for reelection. After all, the 
judges are lawyers, and their professional pride and their 
regard for the opinion of their fellows tend to keep them 
in the path of rectitude. 

The introduction of the recall of judges into the con- 
stitution of Cahfornia in 191 1 precipitated a heated con- 
troversy over the whole subject of judicial appointment 
and tenure. The possibiUty that a judge might be re- 
called for some thoroughly legal though unpopular decision 
shocked the sense of propriety of many persons who had 
looked with complacency on the election of judges by the 
people. Every argument which they advanced, however, 
against the recall of judges was an argument against the 
whole theory of popular election. At the one extreme 
stands Massachusetts, whose judges are appointed by 
the governor for life and are removable on a resolution of 
both houses of the legislature. At the other is Cali- 
fornia, whose supreme court judges are elected for twelve, 



THE STATE JUDICIAL SYSTEM 159 

and trial judges for six years, removable by impeachment, 
joint resolution, or recall. 

It is true beyond possibility of denial that the law is 
a very technical subject, about which the layman knows 
little. It is clear, then, that the people are not very well 
equipped to discover whether a candidate has the neces- 
sary qualifications nor how he fills the position once he is 
elected. The qualities that make a good judge are rarely 
those which make a good candidate. Not only is it 
difficult to select by popular election well-qualified men, 
but it is only by offering a long term and a good salary 
that the best men can be induced to seek the position. 
There is more hope, therefore, of getting a thoroughly 
capable judiciary under the Massachusetts than under 
the California system. On the other hand, our courts 
possess, in the power to hold statutes void on the ground 
that they violate the Constitution, a power which is in 
its very nature political. The people have found, too, 
that judges, even when elected for short terms, are too 
prone to decide cases exclusively on the basis of ancient 
precedents the application of which has been rendered 
unjust by changing social and economic conditions. 
Under these circumstances it is not surprising that the 
bulk of the American people have insisted on an elective 
judiciary. We are, therefore, in a perplexing dilemma 
with regard to the judiciary. We cannot have both 
direct popular control and efficiency. One method of 
escape is to make the state constitution amendable by 
popular initiative, and this has been done in several states. 
The obstacle which the courts can put in the way of ad- 
vanced social legislation is then so slight that, even in the 
opinion of the very radical, judges may safely be made 
appointive. Many persons will shrink from this method 
because they feel that it removes the element of per- 



i6o STATE GOVERNMENT 

manence in our government. The "recall of judicial 
decisions" suggested by Mr. Roosevelt is really only a 
means of submitting to the people for their approval or 
disapproval such statutes as the courts hold unconsti- 
tutional. In other words, it is a method of making the 
Constitution easily amendable. 
Relation of We have already seen that our state constitutions 
t ^the ^^et ^t^^ted out with the idea of the separation of powers. 
departments Each of the three departments of the government was to 
be independent of the others. The judiciary, however, 
has developed powers which are quite inconsistent with 
the original theory. None of the state constitutions gave 
in specific terms the power to the courts to hold an act 
of the legislature void because it was in violation of the 
Constitution. Nevertheless, even before the adoption 
of the Constitution of the United States, state courts 
had assumed this power. It has become the fashion with 
a certain class of writers to say that the courts stole it. 
The power, however, is inherent in the idea that the Con- 
stitution is a superior law to that made by the legislature. 
It was the business of the courts, according to their Anglo- 
Saxon notion of things, to apply the law, and in case of 
conflict between a higher and a lower form of law there 
was no question as to which they should apply. At first 
the courts exercised this power of vetoing the acts of the 
legislature shyly and with many apologies. In recent 
years, however, they have exercised it with bold assur- 
ance. Too frequently they have interpreted the Con- 
stitution in a narrow and technical spirit, imposing as 
barriers between the legislature and measures of social 
reform provisions of the Constitution which were origi- 
nally intended for the protection of the people. 

With regard to the executive department, the courts 
possess the power to forbid, on the appHcation of a party 



THE STATE JUDICIAL SYSTEM i6l 

prejudiced thereby, any action which in their opinion 
has not the warrant of law. They can, and frequently 
do, compel executive officers to perform duties which 
are of a purely ministerial kind; that is, where no 
element of executive discretion enters in. They employ 
for the first purpose the writ of injunction, and for the 
latter that of mandamus. In about half the states the 
governor is not subject to these writs. The courts may 
also, on the application of the attorney-general, deter- 
mine the right of any person to hold an office to which 
he claims to have been elected or appointed. All together, 
the power of the judiciary is so great as to lead to the 
expression that ''we are governed by the courts." It 
must be remembered, however, that the power of the 
courts is almost altogether negative. Further, if the 
executive department fails to back up its orders, they 
may be practically of no avail. 

An action to secure redress for a civil wrong is begun CivU 
by the wronged party, called the "plaintiff," fifing a Procedure 
statement of the injury he has suffered. If the defendant 
admits the facts stated, but denies that they constitute a 
wrong for which the law gives a remedy, he may file a 
demurrer. The judge settles this matter. The defendant 
may also answer the complaint, denying it or confessing 
the facts and setting up some affirmative defense. In 
some jurisdictions the plaintiff may then answer or demur, 
and so on ad infinitum, until an issue is joined. The case 
is then put on the docket or list of cases before the court, 
and comes up in its turn. 

If it is a suit in equity, it is tried by a judge ; if an action 
at law, by a judge and jury. Preparatory to the begin- 
ning of the term of court at which it is to come up, a list 
of jurors has been prepared under the direction of the 
court and a certain number of them, as determined by 



i62 STATE GOVERNMENT 

Supreme Court 
IReto l^orft County 



^ahn ho-& Plaintiff 
against 
Riy&iTiCLlcL Ro-& Defendant 



Summons. — with Notice, 



To the above named Defendant : 

l^OU are berebl^ Summoned to answer the complaint in this 
action, and to serve a copy of your answer on the Plaintiff's Attorney 
within twenty days after the service of this summons, exclusive of the 
day of service, and in case of your failure to appear, or answer, Judg- 
ment will be taken against you by default for the relief demanded in 
the complaint. 

Dated, (Z''WQ^OQZ> 6, 19/0 

j/co'nv&Qy B\X>-W-'yv, Plaintiff's Attorney. 

Post Office Address and Office, No. /^ JLak/& Street. 
NOTICE. — Take notice, that upon your default to appear or answer the above 

Summons, Judgment will be taken against you for the sum of / CJ CJ dollars, 

with interest from jli/WU / , / 7 / O and with costs of this action. 

jamv&a^ ^VaW-TV Plaintiff's Attorney. 

A summons, which brings the person upon whom it is served within the 
jurisdiction of the court specified in the summons. Failure to obey a sum- 
mons renders one liable to arrest and punishment. 

lot, are summoned to appear. From this body the jurors 
in each particular case are drawn by the clerk. The at- 
torneys on either side may challenge a certain number of 
these without cause. Others may be excused if it appears 
to the judge that they are exempt or disqualified. The 
plaintiff's attorney makes an address setting forth the 
case he intends to prove, and follows this by calUng and 
examining his witnesses. When he has asked all the 
questions he desires of a witness, it is the privilege of the 
attorney for the defense to cross-examine him. This is 
a method peculiar to Anglo-Saxon countries and is the 



THE STATE JUDICIAL SYSTEM 163 

best means that has ever been discovered of detecting a 
false witness. Sometimes, however, a clever but unscru- 
pulous lawyer can make even an honest witness seem a 
liar. The defendant's case is then presented in the same 
way. The most difficult questions which arise in the 
course of a trial have to do with the admissibility of evi- 
dence. The original English jury was made up of ignorant 
men, and it was thought that only the best evidence should 
be admitted to them. Therefore the English courts re- 
fused to admit any but direct evidence. The exceptions to 
this ''hearsay rule" form the bulk of the law of evidence, 
and this law the judge must be able to apply almost on 
the spur of the moment throughout the trial. An error 
in admitting or excluding evidence may be ground for a 
new trial being granted by the appellate courts. 

At the close of the taking of evidence the attorneys 
again address the jury. The judge then "charges" the 
jury; that is, instructs them as to the points of the law 
involved. In most of the state courts he cannot charge 
them on the facts, that is, discuss before them the weight 
that should be given to the evidence, although this has 
always been the practice in the English and our own 
federal courts. The jury retires and brings in its verdict 
based on the preponderance of evidence, and if they 
decide for the plaintiff, they also decide the amount of the 
damages. If after a reasonable time the jury is not able 
to reach an agreement, the case has to be tried over again 
before another jury. In most states the decision of the 
jury must be unanimous, but in several a verdict may 
be rendered by less than the whole number. 

A criminal proceeding is usually begun by the arrest Criminal 
of the accused. This may be done by a sheriff, deputy P'^ocedure 
sheriff, or police officer, without a warrant if he knows 
that a felony has been committed and suspects that the 



i64 STATE GOVERNMENT 

person in question is the guilty party. Any person may 
apprehend another whom he sees in the commission of a 
crime. In all other cases a warrant or order of arrest 
issued by a justice of the peace or other judicial officer 
is required. The accused is then brought before the 
justice of the peace or police magistrate, and if the offense 
is a petty one this officer disposes of the case. Otherwise 
he holds him to await the action of the grand jury. For 
this purpose he either commits him to jail or requires 
bail. This means that one or two persons of sufficient 
property file with the court a bond conditioned on the 
appearance of the accused when wanted. The court 
may admit the prisoner to bail in all cases except where 
the death penalty is involved. 

The next step is usually the presentation of the case 
to the grand jury. This is a body of from twelve to twenty- 
three persons more carefully selected than the jurors for 
trial purposes. Sometimes there is a higher property 
qualification for this duty. The grand jury takes up 
matters presented to it by the district attorney and, 
deliberating in secret, determines whether there is prob- 
able guilt. If it decides affirmatively, it returns an 
indictment. The grand jury can also take up matters 
with regard to which no previous legal steps have been 
taken and present the probably guilty parties for trial. 
It is by this latter method that many of the greater crimi- 
nals, such as grafters and conspirators against the pubHc, 
are brought to trial. In some few states the district 
attorney may bring cases up for trial on a simple ''infor- 
mation" filed by himself. This procedure is less cumber- 
some than the other, but it adds perhaps overmuch to 
the authority of the district attorney. 

After indictment or presentment by the grand jury, 
the accused is brought into court and the charge is read 



THE STATE JUDICIAL SYSTEM 165 

to him. He is then asked to plead ''guilty" or "not 
guilty." If he pleads "guilty," the judge proceeds to 
pass sentence. If "not guilty," a jury is drawn in the 
same manner as in a civil action. There is generally 
rather more "fuss" about getting a jury in a criminal 
case. The attorney for the defense is apt to be very 
critical of the persons drawn, and to examine them at 
great length to see if they have any prejudice against his 
client. The district attorney will not be far behind. 
Unless a judge is very active in the performance of his 

SCfje people of tJje State of Neto forft. 

TO joh,n ^'yyuLth 



Greeting : 

IlimC COtTlVnariD l^OU, That all business and excuses being laid aside, 

you and each of you appear and attend before 

__ffo'yv. W'vllva.'yrL Jdvo-w-'yv 



SUBPCENA TO 
APPEAR AND TESTIFY. 



on the 20th day of ^utu, 19/(5', at /O o'clock, 

in the ta'L& noon, to testify what you 

and each of you may know in a certain action 
entvtt&cl ^alwi cd-a& aadtnoZ Ri^ka.vci 
Ra& 

on the part of the said jahyi ^0-& and for a failure to attend, 

you will be deemed guilty of a contempt of Court, and liable to pay all 
loss and damages sustained thereby to the party aggrieved, and forfeit 
Fifty Dollars in addition thereto. 

Witness, /ifa^i. TXMttlci'm Bvaw-n 

the /qX' day of y^ovu one thousand nine hundred and Qyi/?cLe,&'yv . 

A subpoena, which is used for compelling the attendance of witnesses in court. 



1 66 STATE GOVERNMENT 

duty, the drawing of a jury may take a long time. The 
case is conducted very much in the manner of a civil case, 
except that the prosecution, which corresponds to the 
plaintiff, makes the concluding address to the jury. The 
accused cannot be compelled to testify, but may do so 
if he desires. In both civil and criminal cases the parties 
are entitled to orders of the court called "subpoenas," to 
compel the attendance of witnesses. In some states an 
accused person is entitled to have his witness fees paid 
by the public if it appears to the satisfaction of the court 
that he is not able to pay them himseh. Attorneys also 
are assigned in criminal cases to poor defendants who 
cannot afford to employ them. In a criminal case the 
jury must, to bring in a verdict of guilty, be unanimously 
satisfied of the person's guilt beyond a reasonable doubt. 
It simply decides the guilt or innocence of the accused ; 
the amount of the punishment is, within the limits fixed 
by the legislature, determined by the judge. 
The law's In recent years there has been a great deal of criticism 

delays ^f ^j^g courts for their slowness. It has been pointed out 

that in civil cases, to delay justice is practically to deny 
it to the poor. The great corporations and accident in- 
surance companies run upon this principle in fighting 
every case which they cannot settle on their own terms. 
They know that to protract the matter for two or three 
years may tire out the poor plaintiff, whose fund for 
lawyer's fees is necessarily small. In criminal cases it 
results in an increase of crime and of its corollary, lynching. 
Criminals are a short-sighted class of people and a small 
punishment very near and very certain is a more powerful 
deterrent from crime than the severest penalty the inflic- 
tion of which is far off and uncertain. The longer the 
delays in criminal cases, the greater the chance of the 
criminal to escape. The witnesses die or move away and 



THE STATE JUDICIAL SYSTEM 167 

the proof of his guilt is no longer forthcoming. This is 
one of the causes of the great proportion of crimes of 
violence in the United States as compared with other 
countries.^ These delays are due in a large measure to 
the poor quality of the average trial judges in state courts. 
They make frequent mistakes which are the occasion of 
new trials. It is deemed unsafe to give them the power 
which is possessed by a trial judge in the United States 
courts. On the other hand, the technical spirit in which 
the appellate courts consider appeals has had a great 
deal to do in encouraging attorneys to split hairs with 
the trial courts. The situation is now somewhat better 
than it was a few years ago, but it is still very bad. Some 
of the congestion which makes it practically impossible 
to get a jury trial in a civil case in any great city inside 
of two years from the time the suit is instituted, is due to 
the simple congestion of population and can be remedied 
by more judges. There still will remain a good deal to 
be done by the simplification of procedure and the grant- 
ing to trial courts of greater power for summary disposi- 
tion of cases. 

The great complication of procedure under the old com- codes 
mon-law rules has led to attempts to simplify it by legisla- 
tion. How worthy the purpose of this undertaking is 
known by any one who has wrestled with the problems of 

^ Professor J. W. Gamer of the University of Illinois ofifers some statistics 
that are of striking interest : 

HOMICIDES PER MILLION OF POPULATION 

United States 103 (1903) 

England and Wales 10 (1902) 

France 13 (1899) 

German Empire 5 (1899) 

Canada 12 (^1903) 

Further, but one execution is had in the United States for every seventy- 
five homicides, while in twenty years preceding 1904 the number of lynch- 
ings exceeded the number of legal executions by over 600. — Crime and Ju- 
dicial Inefficiency, Annals of the American Academy, 1907. 



i68 STATE GOVERNMENT 

common-law "pleading," as it is called. In some states, 
like New York and California, complete codes of pro- 
cedure have been adopted. Far from simplifying the 
conduct of legal business, these elaborate codes have 
only complicated it. They were prepared in the first place 
with a haste inconsistent with good results and have been 
amended indiscriminately. They have themselves become 
the subject of interpretation by the courts, until it is 
easier than ever to make mistakes in procedure, every one 
of which causes delay if it does not actually prejudice 
the interests of the litigant. The only sensible practice in 
this regard is that of England, which leaves the making 
of rules of procedure to the judges of the high court of 
justice themselves.^ 
Special In many states there are special courts for those ques- 

courts tions which arise in connection with the settlement of 

the estates of deceased persons and the appointment and 
supervision of guardians, etc. They are called "probate 
courts," "surrogate's courts," or "orphans' courts." It 
is also now the general custom to separate those cases 
in which children are accused of crimes or misdemeanors 
from the mass of criminal business, and to deal with them 
in a special court known as the "juvenile court." It is 
ordinarily a branch of the principal trial court for crimi- 
nal cases. 

1 California, the Dakotas, and a few other states have endeavored to 
make a general codification of their whole law. These codes are incomplete 
and in many instances self-contradictory. Because of constant legislative 
patching, they no longer preserve any consistent principle. Further, they 
are objected to as making more keen the differences between the law of the 
several states which the practice of the judge-made law tended to bring 
into uniformity. Louisiana, deriving her law from French sources, has a 
code, based on the code of Napoleon, of more satisfactory quality than that 
of the other code states. 



THE STATE JUDICIAL SYSTEM 169 

SUGGESTIONS FOR FURTHER STUDY 

Beard, pp. 547-577, contains an excellent chapter on this subject. 
See also his Readings, pp. 488-508. Reinsch, P. S., Readings on 
American State Government, pp. 140-207, contains some very well- 
selected articles. Bryce, ch. xlii, is suggestively critical. Reed, pp. 
161-178, deals with the problem of reform of the judiciary. There 
are a few books of a distinctly popular character that may prove 
valuable in exciting interest. Among them are : Wellman, F. L., 
The Art of Cross-Examination and Day in Court; Train, Arthur, 
Courts, Criminals, and the Camorra, pp. 1-64. 

It should never be forgotten that an actual "day in court" will 
teach more of the detail of court procedure than a month of study. 
Use a visit to some court or courts to illustrate the text. Copies 
of documents such as warrants, writs, etc., will help. 

For teachers: Baldwin, S. E., The American Judiciary, gives 
the most comprehensive account of our judicial system. A great 
many books have recently appeared on the subject of the general 
relation of the judiciary to the people. Roe, Gilbert E., Our 
Judicial Oligarchy, and Ransom, W. L., Majority Rule and the Ju- 
diciary, represent the radical view, the introductions to these books 
being written respectively by Robert M. La Follette and ex-President 
Roosevelt. Alger, G. W., The Old Law and the New Order, contains 
very interesting chapters criticizing the courts. See also Judson, 
F. N., The Judiciary and the People; White, William Allen, The 
Old Order Changeth, pp. 197-229. 

Topics : 

The Courts of Your State. 

Report on Visit to Pohce or Justice's Court. 

Report on Trial of a Civil Case. 

Report on Trial of a Criminal Case. 

Statistics of Crime in Your City or County (to be obtained of 

police). 
Convictions (from police court and trial court records). 
The Law's Delays in Your Locahty (see some good local attorney). 



CHAPTER XIV 
THE ORGANIZATION OF STATE ADMINISTRATION 

Professor Beard of Columbia University charac- 
terizes our system of state administration as the "apothe- 
osis of chaos and irresponsibihty." Only the limitations 
of the English language prevent the use of more vigorous 
expressions. We have already looked at this subject from 
the point of view of its influence on the position of the 
governor. We have seen that his control over state 
administration is incomplete, spasmodic, and ineffective 
except as he makes his personality felt as a political leader. 
We shall now see, as we proceed with the study of its 
various branches, how small a provision is made for 
harmony and coherence in the conduct of state business. 
It is all carried on by officers and boards having frequently 
no relation with one another or with any common superior. 
No other governments except those of our counties and 
some cities are carried on in this way. No other human 
enterprise of any sort hampers itself with such an organi- 
zation. It began with the democratic movement. It 
has gone on getting worse with the addition of the new 
branches of administration which the conditions of 
twentieth-century society have necessitated. Such an 
administrative organization is like an old house, origi- 
nally somewhat cramped and ill arranged, which, as the 
family has grown, has had attached new ells, wings, and 
dormers, until it is an architectural nightmare. 

In most states are some half-dozen elective officers. In 
over two thirds of the states there is a lieutenant-governor, 
who takes the place of the governor in the case of the 

170 



ORGANIZATION OF STATE ADMINISTRATION 171 

latter's incapacity or absence from the state. To relieve The elective 
the tedium of waiting for these events to occur, he is ®®*^®^ 
given the duty of presiding over the senate. Where there 
is no Heutenant-governor, the president of the senate is 
frequently designated by the constitution as the successor 
of the governor. 

Then there is a secretary of state, who is only a glorified Secretary of 
chief clerk. He keeps the records of the state and collects ®***® 
a variety of statistics. He issues the calls for elections 
and tabulates the returns for state offices. In his office 
the Great Seal is affixed to documents requiring such 
authentication. In some states he issues certain licenses 
and certificates of incorporation to corporations organized 
under the general laws of the state. 

There is a treasurer, whose principal function is to keep Treasurer 
safe the moneys of the state. He usually has some dis- 
cretion with regard to the deposit of funds in banks, 
and similar matters, and where there is no comptroller or 
auditor he is the chief accounting officer. Otherwise his 
duties are of a purely routine order. 

Most of the states have a comptroller or auditor, who is Comptroller 
the principal disbursing officer of the state, his signature ®^ auditor 
being necessary to the validity of any order on the treasury. 
He keeps the books of the state and checks the expendi- 
tures of each department. In some states he has certain 
powers with regard to the supervision of the finances of 
counties and municipalities. He makes up, before each 
session of the legislature, estimates of the probable revenue 
and expenditure of the state, which are made the basis of 
the general appropriation and tax levy bills (see Chapter 
XXXIII). 

The attorney-general is first of all the legal adviser of 
the governor and of such of the other departments as do 
not have attorneys of their own. His decision is usually 



172 



STATE GOVERNMENT 



Attorney- 
general 



Superin- 
tendent of 
public 
instruction 



Other state 
officers 



Appointive 
officers 



treated as final by the officer who seeks it, and while an 
occasional case gets into the courts, in most instances the 
attorney-general settles the matter. It is difficult for a 
person who has never been directly connected with the 
state government to realize the influence which is thus 
exercised by the attorney-general. He is further expected 
to prosecute or defend all actions in which the state is a 
party, including the appeals which come up from the lower 
courts in criminal cases. In some states he may be 
directed by the governor to institute criminal proceedings 
before any of the courts of the state for the trial of such cases. 

The superintendent of public instruction is usually 
elected by the people, although in Massachusetts and New 
York he is appointed by the state board of education. 
His functions are to act as the executive officer of the 
state board of education, to visit the schools (an im- 
possible task), to attend the county teachers' institutes, 
and to apportion the funds given by the state for the sup- 
port of local schools (see Chapter XLV) . 

Among the other state officers sometimes elected by the 
people are a surveyor-general, who is the land agent of 
the state for the disposition of the lands given by the 
United States for the support of education; a board of 
equalization, whose duty it is to equalize the assessment 
of taxes between the several counties of the state ; a state 
printer ; a state engineer ; a board of fish and game com- 
missioners ; a board of railroad commissioners ; a commis- 
sioner of agriculture ; an insurance commissioner ; a board 
of regents of the university ; and a board of education. 

The rest of the state officers are practically all appointed 
by the governor, generally with the advice and consent 
of the senate. In some instances they are appointed to 
serve during the governor's pleasure, in others during the 
pleasure of the governor and senate, but in the majority 



ORGANIZATION OF STATE ADMINISTRATION 173 

of cases for a fixed term with no definite provision for 
removal at all. Some of the departments have single 
heads, others are in charge of boards or commissions. 
For purposes of clearness we may use the term ''board" 
to describe those bodies the principal duties of which are 
to select an executive head and supervise his conduct, and 
the term "commission" to describe those bodies which 
themselves perform, as bodies, actual administrative 
duties. The former usually serve without pay, the latter 
almost always receive a salary. The nomenclature of 
our state statutes does not always follow this distinction, 
but you will find it useful in expressing your own ideas. 
The best examples of commissions are the so-called rail- 
road or public utility commissions which are now becoming 
common. A good example of a board is the board of 
regents of a state university. The members of boards 
and commissions appointed by the governor usually 
retire in rotation, so that they are thus removed one step 
farther from any genuine control. 

There are also, in most states, a number of ex-ofiicio Ex-officio 
boards or commissions. These are probably the worst ^^^'^^^ 
administrative device applied to state governments. 
None of the members of these ex-ofiicio bodies have any 
time or inclination for service on them. Their chief 
thought is to escape responsibility, while picking up any 
crumbs of patronage which may come their way. The pat- 
ronage is usually divided among the members of the body. 

Among the single-headed departments are numbered 
in most states the commissioner of banks, the insurance 
commissioner, the adjutant-general, the commissioner of 
agriculture or horticulture, etc. State institutions are 
generally under the control of boards, one board to an 
institution. In some states, however, there has been 
some progress made toward concentrating power in the 



control 



174 STATE GOVERNMENT 

hands of boards of control or boards in charge of groups 
of related institutions,^ and the like. The number of 
officers and boards is prodigious, and we have not the 
space to enumerate them even for a single state, much 
less for all. Some of them we shall refer to later when 
we come to the discussion of the functions of government. 
As for the rest, you must study at first hand the adminis- 
trative organization of your own state. 
Boards of That there has been a great deal of waste and inef- 

ficiency in state ailairs directly owing to this disorganized 
and chaotic arrangement goes without saying. Various 
efforts have been made to correct the evil. One of the 
most interesting is the establishment of the so-called 
boards of control. These boards, appointed by the gov- 
ernor and responsible to him, are primarily his agency for 
directing the administration. They have wide powers of 
audit, so that their approval is necessary before the comp- 
troller may draw a warrant. They have even gone 
farther and established a system of pre-audit, by which 
supplies for the various institutions and departments are 
all obtained by requisition on the board of control, which 
determines in advance the wisdom of the expenditure. 
The same idea 'is apphed to other fields of expenditure. 
By this means considerable efficiency is introduced into 
the matter of spending money, but in all other respects 
the various officers and boards are as independent as ever. 
At best, the board of control method is a very incomplete 
and unsatisfactory means of centralizing the administra- 
tion of the state. 

The only thorough remedy for the present condition 
would be to abolish the present elective state officers and 
group all the functions of the state under department 
heads appointed and removable by the governor. This, 

1 See Chapter XLV. 



ORGANIZATION OF STATE ADMINISTRATION 175 



as we shall see, is the method of organization of the ex- Reorganiza- 
tion of ad- 
ministration 



ecutive side of the government of the United States, and ^^^ 



for that matter of every other civiHzed state or country. 
Under it, the governor would have for each main branch 
of the administration an officer whom he could hold re- 
sponsible for that department, and that officer would 
in turn hold the subordinates within his department 
responsible for their conduct. Even if the governor to-day 
had complete power of appointment and removal over 
every officer in the state administration, he could not 
properly direct them, as it would be impossible for him 
even to begin to supervise personally the multitude of 
activities carried on by his appointees. There must be 
grouping of related departments under responsible heads 
to get permanently good results with a minimum of 
friction. 

Below those officers and boards who are elected by the The civU 
people or appointed by the governor come a great number ^^^^^^^ 
of persons who receive their positions through appoint- 
ment by their immediate superiors. In most states they 
are appointed or removed without restriction and for 
any reason or none. The doctrine ''to the victor belong 
the spoils" generally prevails in state government to this 
day. Massachusetts and New York have long had laws 
making eligibility to appointment to the bulk of state 
positions depend on the candidate's passing a competitive 
examination. An officer desiring to make an appoint- 
ment asks the state civil service commission to certify 
candidates for the position. The commission sends the 
three highest names on its list, and from these the ap- 
pointing officer must make his choice. The appointee 
then holds his position during good behavior, — that is, 
until removed on the basis of charges which his superior 
must substantiate. This restriction on the power of 



176 STATE GOVERNMENT 

removal is probably unnecessary, as the fact that he must 
choose the successor from a list of three eligibles removes 
all temptation to dismiss a good official to make room for 
a friend. For positions like those of baker or stone- 
cutter the examinations are not competitive, although 
examination is a prerequisite of appointment. The 
deputies of the heads of departments, some other higher 
officials, and laborers are not subject to examination. 
In spite of incidental defects, the system has accomplished 
a vast deal of good in those states where it has been tried. 
It is unfortunate that only Wisconsin and California 
have so far been added to the list of states which have 
enacted far-reaching civil service laws. 

SUGGESTIONS FOR FURTHER STUDY 

Beard, pp. 499-515, gives an understanding and critical account 
of the subject. Reinsch, Readings on American State Government^ 
pp. 222-239, is good. Reed, pp. 179-193, criticizes the existing 
organization and suggests a new one. The organization of your own 
state should be studied in its constitution and laws. Where a state 
manual is published it will prove useful, as will a textbook on the 
government of your state if there be one. 

For more advanced students, Finley and Sanderson, American 
Executive and Executive Methods, is the only comprehensive account, 
and it is brief and unsatisfactory. Some years ago, under the direc- 
tion of Professor F. H. Goodnow, a number of doctor's dissertations 
were presented at Columbia on various phases of state administration. 
These will be found in the Columbia University Studies in History, 
Economics, and Public Law, vols, vii, ix, x, xvi, xvii. An excellent 
article bearing directly on the subject of this chapter is Barrows, 
D. P., Reorganization of State Administration in California, " Cali- 
fornia Law Review," January, 191 5. 

Topics : 

The Elective Officers in Your State Government. 

The Appointive Officers (may be assigned in several groups). 

The State Civil Service. 



PART IV 
LOCAL GOVERNMENT 



CHAPTER XV 
THE DEVELOPMENT OF CITY GOVERNMENT 

The progress of civilization is usually accompanied by Growth of 
a concentration of population in urban communities. As "**®^ 
civilization progresses and the wealth of the community 
increases, the labor of all the people on the soil is no 
longer necessary to produce food for the community, 
and the well-to-do tend to drift into cities because 
there is more opportunity for social existence there 
than in the country. Furthermore, the increased de- 
mands of the people for clothing and other manu- 
factured commodities cause industries to grow up in 
cities, which naturally attract a still larger portion 
of the people. This movement to the cities, which has 
become especially marked within the last century, is 
worldwide and is closely related to the economic move- 
ment of modern times. It has produced the phenomenon 
of great cities, with their attendant problems. 

The large cities of ancient times were situated on rivers 
or had harbors adjacent to the sea. The reason for this is 
apparent upon a moment's thought. A city, if so situated, 
could market its manufactured products over a greater 
area than could a place in the interior. The greatest 
cities were located upon trade routes, and became im- 
portant because they were the scene of the loading and 
unloading of ships and the exchange of commodities. 

During the Middle Ages cities practically disappeared 
in Europe, and when, with the coming of better times, 
they began to grow again, it was only slowly. At the 
beginning of the nineteenth century England was the 

179 



i8o 



LOCAL GOVERNMENT 



only country in which the inhabitants of the cities formed 
a really large proportion of the total population. A 
series of economic changes, however, which began to be 
operative about the middle of the eighteenth century, 
have revolutionized this situation. The one which has 
received the most attention from students is the im- 
provement in methods of manufacture. The invention 
of the power loom, the application of steam to machinery, 
and a succession of other marvelous inventions have vastly 
increased the productivity of those manufacturing indus- 
tries which are almost altogether carried on in cities. At 
the same time there occurred numerous improvements 
in means of transportation. Neither or both of these 
facts in themselves, however, could have produced the 
marvelous growth of cities in the nineteenth century. 
Along with improvements in machinery and transportation 
came a much less noticed but even more noteworthy 
advance in methods of agriculture. One man can do 
to-day with modern farm machinery what it took forty 
men to do fifty years before the American Revolution.^ 



^ Growth of cities of 


8000 population or more from i 


790 to 1910 is 


indicated in the following table: 






Year 


Total Population 


Population of 

Places of 8000 or 

More 


Number of Such 
Places 


Per Cent of 
Total Popula- 
tion 


1790 


3,929,214 


131,472 


6 


3-3 


1800 


5,308,483 


210,873 


6 


4.0 


1810 


7,239,881 


356,920 


II 


4.9 


1820 


9,638,453 


475,135 


13 


4.9 


1830 


12,866,020 


864,509 


26 


6.7 


1840 


17,069,453 


1,453,994 


44 


8.5 


1850 


23,191,876 


2,897,586 


8S 


12.5 


i860 


31,443,321 


5,072,256 


141 


16.1 


1870 


38,558,371 


8,071,875 


226 


20.9 


1880 


50,155,783 


11,450,894 


291 


22.8 


1890 


62,947,714 


18,327,987 


449 


29.1 


1900 


75,994,575 


25,142,978 


556 


33-1 


1910 


91,972,266 


35,726,720 


778 


38.8 



THE DEVELOPMENT OF CITY GOVERNMENT i8l 

The cities of antiquity were city states. They consisted The place of 

of the city itself and a Hmited agricultural area around it. "*i?^ !? 

antiquity 
They were governed by an assembly of the voting citizens, 

which passed laws, elected executive officers, and criticized 
and controlled these officers in the conduct of their duty. 
To the Greek and Roman philosophers the city was the 
state, and the rest of the territory existed for the city. 
The prosperity, adornment, and glorification of the 
city formed the chief end of ancient rulers. The happi- 
ness of the people was all wrapped up in the success of 
their city. Their social hfe centered around its market 
place. 

The Germanic tribes which overthrew the Roman in modern 
Empire were, as Tacitus tells us, a simple, liberty-loving ^^^^ 
people hving on separate homesteads and very suspicious 
of town Hfe as a possible means of depriving them of their 
liberty. We have already seen that cities disappeared 
in the Middle Ages, and as they grew up again the old 
Teutonic suspicion of them continued. This has been 
true to a greater extent in our own country and in Eng- 
land than in the countries of continental Europe. There 
the Roman ideal of the city as the end and aim of the 
existence of government has had lasting effect. We 
have continued to regard our cities with suspicion and to 
hedge about their power with all sorts of restrictions. 
We have regarded the people of cities as inferior morally 
to the people of the country and have permitted state 
legislatures, largely representative of the country people, 
to control city affairs. As a matter of fact, the city is 
the flower of civihzation. It is in cities that culture 
develops. It is from cities that progressive ideals origi- 
nate. The city should be looked upon with pride, and 
the development of its municipal life fostered. Neither 
its citizens nor the people of the rural districts should be 



I82 



LOCAL GOVERNMENT 



The English 
and colonial 
origins of 
city govern- 
ment 



allowed to look on it with scorn. Many of the failures 
of municipal government in the United States would 
never have occurred had there been a proper feeling of 
pride in the city. 

As cities grew up in England under the Norman kings, 
they demanded and received from the crown certain 
privileges, the most important of which were those of 
electing their own officers and of collecting and paying 
to the king, as a corporation, their share of the royal 
taxes. These privileges were usually embodied in a 
charter granted by the king. 

Each borough was a corporation, or an artificial person ; 
that is, it had the right to sue and be sued in the courts, 
to hold property and do many things which a real person 
can do. The governing body consisted of a mayor, 
aldermen, and councilmen. The aldermen were simply 
a superior sort of councilmen. They all met in one body, 
the mayor as the presiding officer. He had no other 
powers. In the course of time these charters, which 
originally had been rather democratic, were amended so 
as to put the control of borough affairs in the hands of the 
few. In many of the English boroughs of the seventeenth 
and eighteenth centuries, the mayor, aldermen, and coun- 
cilmen constituted a self-perpetuating body. When one 
of their number died, his successor was elected by the rest. 
The boroughs which were chartered by the governors of 
certain of the colonies prior to the American Revolution 
were given governments organized on this same plan. 
In Philadelphia the council was made self-perpetuating. 
In New York, the aldermen and assistant aldermen were 
elected by the "freemen" of the city, but the mayor was 
appointed by the governor. Their population was small, 
the demands of life were simple, and there was little for 
the city government to do. It was considered an honor 



THE DEVELOPMENT OF CITY GOVERNMENT 183 

to serve as mayor or as a member of the city council. 
Under these conditions it is not surprising that in the few 
cities of the colonial period the government was fairly 
satisfactory. 

The formation of our national government had important The effect of 
effects upon the form of city government. In the charters, J?^ ®^® "" 
which under the new state constitutions were granted 
by the legislatures instead of by the governor, wider and 
wider divergences from the English type appeared. The 
first result of the Revolution was to do away with the self- 
perpetuating councils of Philadelphia and some other 
cities, and generally to broaden the franchise. After the 
adoption of the Constitution of the United States, new 
charters showed the influence of what Professor Munro 
calls the "federal analogy." An attempt was made to 
imitate the form of government which was proving a 
success for the nation. The council became a two- 
chamber body. The mayor was elected directly by the 
people and intrusted with the veto. The upper house of 
the city legislature, on the other hand, was given the 
power of confirming the mayor's appointments. The 
result was the establishment of a system of checks and 
balances very similar to that in the national government. 
Whatever may have been the merits of this system as 
applied to the government of the United States, there 
can be no question but what it proved highly detrimental 
to the welfare of our cities. City government is largely 
a matter of practical administration, — the actual build- 
ing of streets, sewers, bridges, the maintenance of fire 
departments, police departments, etc. For these pur- 
poses a government capable of prompt action and in 
which responsibility is clearly fixed is necessary. The 
"federal analogy" has exercised a blighting influence on 
our municipal government by dividing responsibility 



i84 



LOCAL GOVERNMENT 



The effect 
of the 
democratic 
movement 



and making it difficult for the people to tell on whom to 
place the blame for failure. 

We have already noted the effect of the great democratic 
movement of the thirties and forties upon state govern- 
ment. It had a similar but more disastrous effect upon 
city government. In the first place, the municipal fran- 
chise was widened to include practically all white men of 
full age at the time when the flood of foreign immigration 
was beginning to pour into our country. The immigrants, 
to a large extent settled in cities and under lax adminis- 
tration of our naturalization laws, almost immediately 
became voting citizens. Ignorant of our institutions, 
unpracticed in the ways of democratic government, they 
fell under the control of rings and bosses, who directed 
their voting as they wished. At the same time the in- 
creasing population of cities made necessary additional 
municipal services. Police and fire departments, water- 
works, sewage systems, and paved streets had to be 
created. For these new tasks new officers were necessary 
in the city government. In accordance with the same 
democratic theory which caused the secretary of state 
and state treasurer to be elected by the people, police 
commissioner, fire commissioner, street commissioner, and 
sewer commissioner were likewise made elective. This 
introduced a new intricacy into the already complicated 
machinery of city government. If it had been difficult be- 
fore for the people to tell who was to blame for wrongdoing, 
it was doubly difficult now. The situation was made 
worse by the practice of the city council of delegating to 
committees the duty of overseeing the various executive 
departments. It was easy for the head of the street 
department to shift responsibility from his shoulders to 
that of the committee for anything that went wrong. The 
committee would pass it on to the council, and the council 



THE DEVELOPMENT OF CITY GOVERNMENT 185 

would throw it back upon the mayor. The result was 
an endless game of battledore and shuttlecock, with the 
people as interested but bewildered spectators. 

We have already seen that the state legislatures succeeded State inter- 
to the chartering power of the colonial governors. In the *?5®^^® ^*° 
absence of express limits upon their authority, the courts government 
held that the legislatures might make any provision they 
pleased with regard to municipal government. The 
general practice was for the charter to be framed by a 
group of citizens usually connected with the political 
party in power in the state. It would then be introduced 
into the legislature by a member from the city in ques- 
tion, and the legislature would adopt it without much 
consideration. The real evil in this system of making 
charters lay in the fact that the people who actually 
frarhed the charter were not responsible to any one for 
what they did, and that the legislature did not in any way 
effectively scrutinize the measure. Furthermore, good 
citizens, to correct an abuse, or members of the party out 
of power in the city, from motives of revenge, sometimes 
obtained from the legislature laws putting departments 
like the police department in the hands of men elected by 
the legislature or appointed by the governor. The legis- 
lature usually prescribed in its charter just what powers 
a city might exercise. The courts have always held that ' 
a city may exercise only such powers or those which may 
be fairly implied from them. It being impossible to fore- 
see just what powers the city might need to exercise, the 
legislatures were called upon to pass many laws giving 
the city power to do particular things.^ An act of the 
legislature was held to be necessary for such matters as 

1 A glance at the index of the statutes of Massachusetts or any of the 
other states which have not changed this situation by constitutional amend- 
ment will thoroughly establish the truth of this statement. 



i86 



LOCAL GOVERNMENT 



The begin- 
ning of 
reform 



Charters 
granted by 
general law 



raising the salary of a janitor from eighty-five to ninety 
dollars per month, or to close or open a street, or to put 
through a claim for a few hundred dollars. While the 
state legislatures were freely interfering in the naming of 
alleyways, it is no wonder that no sense of municipal 
responsibility could develop among the people of the city. 

As a result of the complicated character of city govern- 
ment, and of legislative interference, city government 
became so bad that reform was inevitable. It is impos- 
sible to establish a period at which our cities began to 
grow better. Improvement started in some earlier than 
in others. In certain cases the most spectacular car- 
nivals of corruption took place after the movement for the 
reform of city organization had begun. Reacting from 
the extreme diffusion of power which we have described, 
city charters, about 1870, began to concentrate authority 
in the hands of the mayor. In the thirty years from 
1870 to 1900 the power of the mayor was vastly increased. 
The departments which had previously been governed by 
independently elected heads or by state commissions 
were put under his control, although his power of appoint- 
ment generally continued to be subject to the confirma- 
tion of the city council. Two-chamber city councils 
mostly disappeared. Ward election likewise tended to 
give way to election at large. 

The reaction against the system of special charters 
found its first expression in the Ohio constitution of 
1 85 1, which provided that cities henceforth might be 
chartered only by general law. This principle has been 
written into many of the later constitutions. The courts, 
however, have held that a law is "general" if it applies 
to a whole class. The result has been that in those 
states which have imitated the Ohio provision, the legis- 
latures have provided different forms of government for 



THE DEVELOPMENT OF CITY GOVERNMENT 187 

various classes of cities. In Ohio they carried the process 
of classification, which was on the basis of population, to 
such extremes that all of the principal cities of Ohio had 
what in reality were special charters. In 1902 the supreme 
court of Ohio decided against the power of the legislature 
to make such classifications, and all cities of that state 
were governed by a uniform code until the adoption of 
the revised constitution in 191 2. 

The practice has grown in recent years of enacting two Alternative 
or more alternative forms of government, among which ^^^^'^^^s 
the municipality may have its choice. The famous Iowa 
statute estabhshing what is commonly known as the 
*'Des Moines" form of commission government was simply 
alternative to an older general-law charter for first-class 
cities. The Ohio amendment of 191 2 provided for the 
enactment by the legislature of several standard acts for 
city government, of which cities may have their choice. 
The New York legislature of 19 14, however, went still 
farther by providing five alternative forms of government 
for second-class cities. 

The Missouri constitution of 1875 gave to cities of over Freeholder 
100,000 population ^ the right to frame their own charters. ^ ^rters 
The California constitution of 1879 copied the Missouri 
provision, and the right has since been extended in that 
state to all cities of 3500 or over. Washington followed 
in 1889; Minnesota in 1898; since which time Colorado, 
Oregon, Oklahoma, Michigan, Arizona, and Ohio have 
given cities that privilege. The charters are drawn up 
by a charter commission or board of freeholders of from 
thirteen to twenty-one members. They are elected by 
the people, except in Minnesota, where they are ap- 
pointed by the district court. The election of freeholders 
is called by initiative petition or by the city council. 

1 St. Louis was the only city affected. 



i88 



LOCAL GOVERNMENT 



Comparison 
of the three 
methods of 
charter- 
making 



When the board has completed its work, the charter is 
submitted to the voters of the city. In general, a simple 
majority of those voting at the election is sufficient to 
secure its adoption, but in some states a larger propor- 
tion of the vote is required. In California a charter does 
not become effective until it has been approved by the 
legislature, which, however, always happens. In Michi- 
gan the charter is submitted to the governor, and if he 
does not approve of it a two-thirds vote of the people of 
the city is necessary to put it in force. Amendments 
are usually proposed either by initiative petition or by 
the city council, but are subject to the same process of 
ratification as a complete charter. 

The chief objection to the freeholder system of charter- 
making has been that it might give the city control over 
affairs in which the state is primarily interested, especially 
in such matters as police administration, election ma- 
chinery, and the administration of justice. It is obvious, 
of course, that such things should be regulated in a uni- 
form way for the whole state. In consequence, either 
by constitutional provision or judicial decision the scope 
of freeholder charters has been limited to strictly munici- 
pal affairs. 

The objections to the system of special charters are 
very serious. If the legislature really goes into them, 
representatives from rural districts who know little or 
nothing about the problems of city fife will have, in most 
states, the last word as to the form of city government. 
When, as is most frequently the case, the legislature 
simply passes complaisantly the charter presented by a 
member from the city in question, it means that no proper 
criticism of the charter is had at all.^ 



1 A few years ago the people of Ogdensburg, N. Y., had the temerity to 
elect a set of Democratic city officials. The Republican member of the 



THE DEVELOPMENT OF CITY GOVERNMENT 189 

The general-law charter system obviates these evils. 
On the other hand, unless a very minute classification of 
cities is permitted, it prevents variation of the form of 
government to meet local needs. The privilege of adopt- 
ing a freeholder charter gives a city the opportunity to 
make its institutions fit its needs, and at the same time 
guarantees that the charter will be the work of responsible 
persons and approved by the people. On the whole, 
some freedom of choice as to the form of city government 
is much to be desired. The alternative plan of New York 
has great advantages if carefully worked out. It insures 
against local vagaries in charter-making and at the same 
time gives to cities a reasonable choice as to their form of 
government. 

SUGGESTIONS FOR FURTHER STUDY 

The best material for young students is Beard, C. A., American 
City Government, pp. 3-51. Goodnow, F. J., City Government in the 
United States, pp. 3-108, presents the subject in a fairly easy style. 
MuNRO, W. B., Government of American Cities, pp. 1-28, is more 
thorough, but harder. Bryce, chs. 1-lii, gives an excellent criti- 
cism of American city government as it was prior to 1900. Steffens, 
Lincoln, The Shame of the Cities, presents a series of stirring popular 
articles (originally published in "McClure's Magazine") on munici- 
pal corruption. For the methods of boss rule in cities see Lewis, 
A. H., The Boss. The constitution and statutes of your own state 
must be frequently consulted. If the statutes are not available in 
the public library, they may usually be found in a lawyer's office. 

For teachers: Fairlie, J. A., Essays in Municipal Administra- 
tion, pp. 48-94, gives the most complete account of city government 
in the colonial period. Weber, A. R., The Growth of Cities in the 
Nineteenth Century, is the only American work on that subject. 
On municipal home rule see Goodnow, F. J., Municipal Home 

legislature from that city promptly introduced a bill abolishing the existing 
charter and giving it a new one so as to require a new election. The legis- 
lature passed it, the chief argument with the majority being "The gentleman 
from St. Lawrence County wants it." 



ipo LOCAL GOVERNMENT 

Rule, chs. iv and v, and Municipal Problems, ch. iv; Deming, 
H. E., Government of American Cities; Fairlie, J. A,, Essays in 
Municipal Administration, pp. 95-124; Oberholtzer, E. P., The 
Progress of Home Rule in Cities, Proceedings National Municipal 
League, 1904; Miller, G. A., The Home Rule Law for Michigan 
Cities, same, 1909; Reed, T. H., Home Rule in California Cities, 
"JSTational Municipal Review," October, 1913 ; Wisconsin Free 
Library Commission, Home Rule Charters, Comparative Legislation, 
Bulletin 18. 

Topics : 

The Growth of Cities. (See United States Census.) 
The Method of Charter-granting in Your State. 
The Charter History of Your Own or a Neighboring City. 
Special Legislation for Cities in Your Own State. 



CHAPTER XVI 
PRESENT FORMS OF MUNICIPAL GOVERNMENT 

Down to 1900, while various attempts at municipal Prior to 
reform had been made, no form or type of city govern- ^^^^ 
ment that had been adopted had received conspicuous 
public approval. Bryce's famous statement that our city 
governments were our ''one conspicuous failure" was 
still in a large measure justified by facts. 

It was out of a terrible disaster that there finally came The Galves- 
a new form of municipal organization, destined greatly ^^^^^^' 
to influence American city government. The city of 
Galveston, Texas, stands at the extreme eastern end of 
a long, narrow island, parallel to the shore of the Gulf 
of Mexico. The island lies low to the water, but the 
slight normal rise and fall of the tide left the people in 
perfect apparent security until Saturday, September 8, 
1900, when a West Indian hurricane, blowing at the rate 
of 120 miles an hour, piled the waters of the Gulf upon 
the unfortunate city. Nearly 7000 people lost their 
lives, and over 4000 homes were swept away. The deser- 
tion which always follows death and disaster brought the 
city's population down from 45,000 to about 20,000. The 
heroic remnant faced the herculean task of rebuilding 
their city and making it safe from a second flood. 

The city government of Galveston at that time was of 
a not uncommon type in the United States. It consisted, 
of a mayor and of twelve aldermen who were elected at 
large. The mayor had the veto power, and the board 
of aldermen had the power to confirm or reject the mayor's 
appointments. Under the strain of the flood crisis, the 

191 



192 



LOCAL GOVERNMENT 



city government failed entirely, and the actual work of 
rescue and restoration had to be undertaken by a volun- 
tary committee of business men. As soon as occasion 
permitted, this committee set about devising a plan of 
government for the city. The plan drawn up was 
adopted by the Texas legislature at the session of 1901. 
It provided for a board of five commissioners, to whom 





THE PEOPLE 












_ 





JUDICIARY 








CITY COMMISSION 


COMMISSIONER 

OF FINANCE AND 

REVENUE 


COMMISSIONER 

OF 
PUBLIC WORKS 


COMMISSIONER 

OF 
PUBLIC AFFAIRS 


COMMISSIONER OF 
PUBLIC HEALTH 
AND SAFETY 


COMMISSIONER 

OF 

SUPPLIES 



Distribution of powers under the commission plan of city government. 

were intrusted as a body all the powers of the city govern- 
ment, whether of a legislative or executive nature. Three 
of the commissioners were to be appointed by the gov- 
ernor and two elected by the people at large every two 
years. The provision for the appointment of three 
commissioners by the governor was held unconstitutional 
by the court of criminal appeals, and in 1903 the charter 
was amended so as to provide for the election by the 
people of all five commissioners. One of the commis- 
sioners is called the "mayor-president." He is directly 
elected to that position. The other four commissioners 
are simply chosen to the commission. The mayor re- 
ceives a salary of $2000 a year and is expected to give 
six hours a day to the work of the city. The other com- 
missioners receive a salary of $1200 a year and give only 
such time as is necessary to perform their duties. The 
mayor-president has no particular power other than as 
presiding officer of the commission. The commission, 
as a body, is the final authority in all city business. For 
the purpose of supervising the administration of affairs, 



the Galves- 
ton plan 



PRESENT FORMS OF MUNICIPAL GOVERNMENT 193 

the commission assigns one of its members to each of 
the following departments : poHce and fire ; streets and 
pubhc property; waterworks and sewerage; finance and 
revenue. The commissioner in charge of each of these 
departments directs the details of management, subject 
to the control of the commission as a whole. The more 
important appointments are made by the commission 
upon the recommendation of the commissioner in charge 
of the department in question. The less important ap- 
pointments are made by the commissioner on his own 
authority. 

The terrible situation in which the city of Galveston Success of 
found itself called for the best leadership in the commu- 
nity. It need not surprise us, therefore, that the first body 
of commissioners was made up of leading business men of 
the city. What is more surprising is that these same 
men were long continued in control by the votes of the 
people. The commission adopted the practice of meet- 
ing in the evening, and the individual commissioners did 
not undertake to manage all the details of their several 
departments. They intrusted that work to well-trained 
and competent officers. They themselves acted in the 
same relation toward these officers as the board of di- 
rectors of a corporation acts toward its employees. The 
results were strikingly successful. With the aid of the 
federal government an enormous sea wall was erected to 
protect the city from the Gulf. The grade of the city 
was raised to the level of this sea wall ; a new and effective 
sewage system was installed; streets were paved; the 
moral conditions of the city were corrected ; and all with 
a marvelously small expenditure of public money. In 
short, Galveston became an object lesson to the rest of 
the United States. More important than anything else 
was the encouragement which it gave to the work of all 



194 



LOCAL GOVERNMENT 



The spread 
of commis- 
sion 
government 



municipal reformers. We had long rested in the belief 
that the condition of our cities was desperate. All efforts 
toward reform were made from a sense of duty, but with- 
out much hope of success. Galveston showed that an 
American city could be run in an efficient manner. 

It was some time, however, before the Galveston form 
of government was extensively copied. Houston, Texas, 
in 1905 received a charter in some respects like that of 
Galveston. There was, however, some apprehension 
on the part of the people about granting complete power 
over the affairs of the city to such a small body of men. 
The idea that checks and balances in government were 
necessary to avoid abuse of power was ingrained in them. 
The added elements which were necessary to secure a 
general adoption of commission government had their 
origin with certain citizens of Des Moines, Iowa. They 
secured from the legislature of that state, in 1907, an act 
providing that any city of 25,000 population or more 
might adopt a commission form of government. The 
city of Des Moines promptly took advantage of this 
privilege, and the act which went into effect in that city 
in April, 1908, has become famous as the Des Moines form 
of government. It differed from the Galveston form in 
several particulars. The commissioners were paid larger 
salaries than in Galveston, the mayor receiving $3500 
a year and the councilmen $3000 a year. On the other 
hand, these officers were expected to give all their time 
to the work of the city and to be the actual working heads 
of the departments to which they were assigned. Un- 
fortunately, the Des Moines idea in this respect has been 
copied by practically all other commission-governed cities. 
A large part of the success achieved in Galveston was un- 
doubtedly due to the high grade of men who made up the 
board of commissioners. Such men could not have been 



PRESENT FORMS OF MUNICIPAL GOVERNMENT 195 

attracted away from their important private business to 
accept a full-time civic position. The principle that a com- 
missioner must give all his time to the city and be the actual 
working executive in his department has meant that only 
mediocre men have been willing to become candidates. 

The Des Moines plan, however, added certain pro- The Des 
visions not in the Galveston charter which were to have ^°"^®s P^*" 
an important effect upon the spread of commission gov- 
ernment. These were the initiative, referendum, and 
recall, the general nature of which has been described in 
an earlier part of this book. With these reserve powers 
in the hands of the people, the fear of concentration of 
power in the hands of a small commission disappeared, 
and the commission form of government spread like wild- 
fire over the country. There are now more than three 
hundred cities, ranging all the way from New Orleans 
with a population of 339,000 down to little cities of a few 
hundred inhabitants, which have adopted it.^ The Des 
Moines plan also first applied to American city govern- 
ment the idea of non-partisan nominations and elections 
already referred to. 

While the idea of concentrating the powers of city The mayor 
government in a small board was making such tremendous g^yo^ui^fnt 
headway, the tendency which we have already noted 
toward the concentration of large powers in the hands of 
the mayor was brought to its highest point in the Boston 
charter of 1909. Under this charter there is a mayor 
elected by the people of the city for a four-year term.^ 
The council consists of nine members elected for terms of 

^The extent to which the initiative, referendum, and recall have been 
adopted in connection with commission government is pointed out in an 
article by Dr. Charles F. Taylor in the "National Municipal Review" for 
October, igi4. Of 279 municipaUties, only eighteen were entirely without 
these features; 197 of these cities had all three. 

2 There is an imworkable recall provision. 



196 



LOCAL GOVERNMENT 



three years, one third retiring each year. The mayor has 
complete control over the administrative side of the city's 
business. His appointments need no confirmation by 
the council. The only restriction upon him in this regard 
is the power of the state civil service commission to re- 
fuse to certify the competency of his selections for de- 
partment heads. The mayor has the power of veto on 



THE PEOPLE 



CITY COUNCIL 



MAYOR 



CHIEF OF 
POLICE 



FIRE 
COMMISSIONER 



COMMISSIONER OF 
PUBLIC WORKS 





JUDICIARY 




:::;^ 











HEALTH 
OFFICER 




STREET 
SUPERINTENDENT 



The mayor plan of city government, showing the concentration of large 
powers in the hands of the mayor. 

all acts of the council, including items of appropriation 
bills. Still more important is his sole power of origi- 
nating the annual budget and other appropriation bills. 
The council may reduce or reject but cannot increase 
the items which he recommends. Since the work of city 
government is largely concerned with the spending of 
money, it is clear that the mayor is by this provision 
made practically dictator of the city. The council has 
little to do except to say yes or no to the mayor's 
request for money. The council has the power to grant 
franchises and to pass police ordinances, of course subject 
to the veto of the mayor. There is no possible confusion 
as to who is responsible for what the city does. In 
every case it is the mayor. ^ 



1 This charter also provided for a "finance commission," appointed by the 
governor to watch and report on the conduct of the city government. The ac- 
tivity of this commission and the definite fixing of responsibility have brought 
about considerable improvement in the conduct of the city's business. 



PRESENT FORMS OF MUNICIPAL GOVERNMENT 197 

The government of New York City has characteristics Government 
of both the mayor and commission plans and furnishes ^f^^^wYork 
the only example in America of a city divided into bor- 
oughs. These boroughs, of which there are five, represent 
the several units which were united to make the present 
Greater New York. Each borough elects its borough 
president, who has a large power of appointment, and 
considerable administrative authority within the borough, 
especially with regard to public works. The mayor is 
elected by the people at large for a four-year term and 
appoints the heads of most of the principal departments 
of the city. As a matter of convenience these depart- 
ments frequently maintain offices in the several boroughs. 
Besides the mayor, the comptroller and the president of 
the board of aldermen are elected at large. The board 
of aldermen is elected by districts. This board, however, 
has even less power than the city council in Boston. The 
financial powers, which in Boston belong to the mayor, 
are vested in a board of estimate and apportionment. 
This board consists of the mayor, comptroller, and presi- 
dent of the board of aldermen, who each have three votes, 
and of the presidents of the five boroughs of Manhattan, 
Brooklyn, Bronx, Queens, and Richmond, the first two 
having two votes each and the three last having one vote. 
The annual budget originates with this body. It has juris- 
diction over franchises and over practically everything 
which involves the expenditure of money. This system 
in New York does not by any means work perfectly. 
Many of the best students of municipal conditions in 
that city criticize the organization of the board of estimate 
and apportionment, and believe that legislative and ex- 
ecutive functions should be more completely separated. 

The idea of intrusting the management of the city to 
a non-political officer, who should bear the same relation 



ipS 



LOCAL GOVERNMENT 



City 

manager 

plan 



to the city council that the manager of a corporation bears 
to its board of directors, is not entirely new. Suggestions 
of this sort appeared years ago. It was not, however, 
until the rather general adoption of commission govern- 
ment, with its director-like council, that the practical 
application of the plan was attempted. In December, 




The city manager plan of government. 

1 910, the board of trade of Lockport, N.Y., while search- 
ing for a form of government to take the place of the city's 
complicated mayor and council plan, hit upon the idea of 
adding to the commission of five members, similar to that 
of Galveston and Des Moines, a manager, who was to be 
appointed by the council to hold office during its pleasure. 
The appointment of practically all other officers and the 
direction of their work was to be in his hands. He was 
to attend all meetings of the commission and to have the 
right to speak, but not, of course, to vote. The legisla- 
ture of New York refused in 191 1 to give Lockport this 
form of government. The proposed charter of Lockport, 
however, has become the model for a considerable number 
of other city charters actually adopted.^ 

^ Sumter, S.C, has the honor of being the first city to adopt a charter 
providing for a manager. This was on June 12, 191 2. In the meantime the 
city of Staunton, Va., which was governed by a mayor and council, passed 
an ordinance by which the administration of the city was intrusted to a 
manager. The largest city which has yet adopted the plan is Dayton, 
Ohio, with a population of 116,000. A score of other cities scattered all 
over the coimtry have at this writing taken up the idea. 



PRESENT FORMS OF MUNICIPAL GOVERNMENT 199 



The very wide adoption of commission government, 
especially by cities of moderate size, would seem to indi- 
cate that it has proved successful in meeting the problems 
of American cities. There can be no doubt that commis- 
sion government has proved much better than the con- 
fusing and complicated system which preceded it. The 
mechanism of city government has been greatly simplified. 
The small size of the council and the concentration of all 
authority in its hands has had the effect of fixing responsi- 
bility. The result has been a great improvement in the 
honesty of city government. It has made it more gen- 
uinely representative of the wishes of the people.^ On 
the score of efficiency, however, commission government 
cannot point to many conspicuous successes. Galves- 
ton's experience has remained unique. On the whole, 
however, the efficiency of commission-governed cities 
is greater than that secured in other cities of like 
grade. 

It was inevitable that the success of commission govern- 
ment in producing efficiency should be only moderate, 
except where, as in Galveston, the commission acts simply 
as a board of directors. The Des Moines method, which 
has been the one almost universally adopted, gives the 
actual administration of the departments to elected com- 
missioners. We have already seen that such men are 
usually of only mediocre ability. It is impossible to choose 

^ In this connection, we must not neglect the influence of the initiative, 
referendum, and recall, which have put strong barriers in the way of mis- 
behavior of city ofl&cials. These devices have not been used very extensively, 
but the fact that they have existed has nipped in the bud many schemes of 
graft and corruption. Some authorities, on the other hand, ascribe the 
general merit of the commission form of government to the short ballot 
which it makes possible. Still others emphasize the non-partisan system of 
nominations and elections. Any true estimate of the cause of improvement 
in our city government must award a large part of the credit to other causes 
than the concentration of legislative and administrative authority in a 
small board, which is the essential idea of commission government. 



Has the 
commission 
form of 
government 
been a 
success ? 



Limitations 
of commis- 
sion gov- 
ernment 



200 



LOCAL GOVERNMENT 



expert administrators by popular election. The man 
who is the best vote-getter is frequently the worst pos- 
sible sort of administrator, while a good administrator is 
only rarely gifted as a candidate. Another difficulty with 
commission government in the matter of efficiency is 
that it makes no provision for a single executive head. 
Five men are better than one for purposes of deliberation, 
but one man is superior to five in action. The fact, too, 
that the commissioners are individually heads of depart- 
ments, and collectively a legislative body, prevents effec- 
tive criticism of their administrative work. A commis- 
sioner is reluctant to criticize the conduct of any other 
department, because the commissioner criticized is likely 
to hit back. Each commissioner pursues the timeworn 
policy of "those who live in glass houses." 

The independent mayor type of city government, as 
illustrated by Boston, gives us a single executive 
head, and separates executive and legislative functions 
city manager g^ ^j^g^^ ^j^^ legislative department may act as a critic of 
the executive. The chief difficulty with this plan is that 
the mayor, when elected, is during his term of office prac- 
tically irresponsible. The recall is at best but an ineffec- 
tual check upon the executive, since it cannot be used to 
punish ordinary mistakes of judgment. It is a weapon 
of too heavy a caliber for use except in extraordinary 
emergencies. The criticisms of the council may be 
ignored. This gives the people no remedy for the mis- 
takes of the mayor during his term. The city manager 
plan also gives us a single executive head. At the same 
time it offers an added advantage in continuous responsi- 
bility on the part of the manager. He may be removed 
by the council at any time. He is in the position of a 
manager of a corporation, and the council in that of the 
board of directors. They act as representatives, deciding 



The relative 
merits of in- 
dependent 
mayor and 



PRESENT FORMS OF MUNICIPAL GOVERNMENT 201 

the policy to be pursued, and the manager simply carries 
out that policy as an expert in administration. This is 
the method of organization which has been most success- 
fully pursued in private corporations. 

SUGGESTIONS FOR FURTHER STUDY 

The best supplementary reading for students is to be found in 
Beard, C. A., American City Government, pp. 52-128. Wilcox, 
D. F., Great Cities in America, gives excellent accounts of the 
governments of New York and other larger cities. An article by 
Turner, G. K., Galveston a Business Corporation, in "McClure's 
Magazine" for October, 1906, remains the best statement of 
the achievements of that city. Munro, W. B., Ten Years of 
Commission Government, in "National Municipal Review" for 
October, 1913, is the sanest summary of results of that form of 
government. Reed, T. H., Government for the People, pp. 194-214, 
may be profitably read in connection with this chapter. Beard's 
Loose-leaf Digest of Short Ballot Charters contains many articles of 
great merit, the more important of recent charters in full and the 
less important ones in outhne. It is published by the Short Ballot 
Oganization and is kept strictly up to date. A portion of the above 
digest. City Manager Plan of Municipal Government, can be obtained 
separately for twenty-five cents. James, Herman G., Applied City 
Government, gives a model charter of the manager type. It is a brief 
and useful book. Among the late books Ryan, Oswald, Municipal 
Freedom, and Toulmin, H. A., The City Manager, will be found 
especially useful. 

For teachers : On commission form of government the best books 
are Bradford, E. S., Commission Government in American Cities; 
Woodruff, C. R., City Government by Commission; McGregor, 
F. H., City Government by Commission, University of Wisconsin 
Bulletin No. 423. 

Topics : 

The Charter of a Commission-governed City. 

The Charter of a City Manager City. 

The Charter of Your Own City. 

A Study of the Organization of Your City Government (divided 
among several pupils), culminating in the preparation of a 
chart showing the relation of the various offices. 



202 LOCAL GOVERNMENT 

The Initiative, Referendum, and Recall in City Government 

(especially as they relate to your own or near-by cities). 
The Short Ballot as a Factor in Municipal Reform. 
"Experts" in City Government, their selection and relation to 

the political officers of the city. 
Chapter XXXIX relating to Municipal Functions may perhaps 

be profitably studied at this point, with special emphasis on 

the functions of your own city. 



teenth 
century 



CHAPTER XVII 

RURAL LOCAL GOVERNMENT IN ENGLAND AND THE 

COLONIES 

We need look no further back for the origin of our English 

local institutions than to seventeenth-century Eng- ^°^^^y soy- 
. . ^ o ernment in 

land. The most important unit was the county. Repre- the seven- 

senting the king in military matters was an officer of great 
dignity, known as the ''lord-lieutenant." A sheriff, 
appointed by the king, was the executive authority so far 
as any existed for matters other than military. There 
was also a coroner, the only officer in the county elected 
by the people. Power was lodged principally in the 
justices of the peace, twenty to sixty in number, who were 
appointed by the crown on the nomination of the lord- 
lieutenant. They were usually taken from among the 
landed gentry of the county, and, while not responsible 
to the people in any sense, were fairly representative of 
the locality. These justices were charged in the first 
place with the preservation of the peace, and in the second 
place with seeing to it that the laws were faithfully ad- 
ministered. A single justice could exercise some minor 
powers. Two justices together could exercise still more, 
and all of the justices together in "quarter sessions" (so 
called because they were held quarterly) constituted at 
the same time a court for the trial of important criminal 
cases and for holding to their duty the various officers of 
the county and other local divisions. The only other 
active unit of local government was the parish. The 
parish was originally an ecclesiastical division, being the 
territory served by a single church. The parish or 

203 



204 LOCAL GOVERNMENT 

"town" meeting, as it was frequently called, made up 
originally of the adult male inhabitants, voted the parish 
rate or tax for the support of the church and other pur- 
poses. The parish meeting also elected the church 
wardens, who were the principal officers of the parish. 
Other parish officers, notably the overseers of the poor and 
the constable, were appointed by the justices of the peace 
of the neighborhood, frequently upon the recommendation 
of the parish meeting. 
Physical Our colonial ancestors brought with them their English 

conditions ideas of local government, and appHed them as best they 
onies as de- might to the conditions in America. These conditions 
If^P"^^ differed very much in the different sections of the country, 
acter of local In New England the soil required cultivation which could 
government ^j^jy |^g given it by small proprietors. The winters were 
intensely severe ; the Indians were fierce and hostile. All 
these conditions tended to keep the early settlers of New 
England together in Httle settlements. In Virginia, on 
the other hand, the soil of the regions first settled was 
marvelously fertile and adapted to the production on a 
large scale of the staple crop, tobacco. Broad, navigable 
rivers penetrated far into the interior, so that the ship 
could sail directly up to the wharf of the plantation and 
load her cargo of tobacco for an English port. Under 
these circumstances it was natural that the estates should 
be very large and that the population should be scattered. 
Furthermore, the early New England towns were 
usually settled by already organized congregations, the 
members of which naturally clung closely together. The 
territory midway between Virginia and New England 
partook in varying degrees of the character of each, and, 
as we shall see, took on an intermediate form of local 
government. 

The government of the New England town was vested 



RURAL LOCAL GOVERNMENT IN ENGLAND 205 

in a meeting originally of all adult male persons, but later The New 
of church members or taxpayers. The parish meeting in ^^sland 
which settlers had participated in England was un- 
doubtedly the origin of this institution. At first the 
town meeting settled all matters itself. It was found, 
however, that it had to be called so frequently as se- 
riously to interfere with the work of the people. They 
therefore had recourse to the election of a committee or 
board of selectmen. There were from three to thirteen 
of them, and they exercised in the interim between meet- 
ings practically all the powers that might be exercised 
at the town meeting itself, except the election of the more 
important officers. Their service was unpaid, and it 
was considered a great honor to be a ''selected" man. 
Town meetings, usually held in March or April, elected 
town officers, went over the accounts of the selectmen and 
approved or rejected them, and made appropriations for 
the ensuing year. The town meeting adopted also a great 
many by-laws very carefully regulating the lives of the 
people in various ways which we should to-day consider 
objectionably meddlesome. They elected a large num- 
ber of officers, most of whom served without pay except 
the town clerk, who received certain fees. Among these 
officers were the treasurer, assessors, tax collectors, sur- 
veyors of highways, and clerks of the markets. There 
were besides a large number of officers who performed 
what were practically police duties. The most important 
of these was the constable, who was the only general 
police officer. The others simply regulated particular 
matters, — such as hog-reeves, who looked after the 
matter of the running at large of hogs; rebukers of 
boys in church; viewers of fish, cordwood, or any 
product of the community. It was the duty of these 
last officers to see that fair measure was given. The 



206 



LOCAL GOVERNMENT 



The county 
in New 
England 



Local 

government 
in Virginia 



town crier was an invaluable officer in the days before 
newspapers. 

In New England the colonies were also divided into 
counties, and in these counties there were the justices of 
the peace and courts of sessions, or county courts. These 
courts in general exercised judicial power in criminal and 
civil matters, but they had the right to approve or dis- 
approve of town ordinances, and many other administra- 
tive duties. They had the power, too, like the justices 
in England, to fine the town for the non-performance of 
its legal duty. For example, the colony of Massachusetts 
required each town of fifty families to maintain a school. 
If the town failed to do so, it was indicted and tried in the 
county court and fined hke any individual offender. It is 
possible to find in the records of many Massachusetts 
towns debates as to whether the town would hire a school- 
master or appoint attorneys to defend it before the court. 
The county, however, was a much less important unit of 
local government than the town. Though there were 
legal limits to things which the town might undertake, 
it knew practically no master, " except the Great Jehovah," 
whose notions about earthly things were variously inter- 
preted. 

In Virginia, as one might well suppose, the county 
became the principal unit of local government. The 
principal authority in a Virginia county was the county 
court, composed of justices appointed by the governor 
for fife. As a matter of practice, vacancies were filled 
by the governor upon the recommendation of the re- 
maining justices of the county; and thus the county 
court became a close corporation of well-to-do and in- 
fluential members of the aristocratic class. The court 
usually met monthly in the county town. It had civil 
and criminal jurisdiction like the justice's courts in New 



RURAL LOCAL GOVERNMENT IN ENGLAND 207 

England and the court of the quarter sessions in old Eng- 
land. It had, besides, administrative powers, which 
included the construction of highways and bridges, their 
maintenance and repair, and many other matters. The 
chief executive officer of the county was a sheriff, who 
was appointed by the governor from a list of three of their 
own number submitted by the justices of the county. 
There was also a lieutenant, who had charge of military 
affairs and was appointed directly by the governor, a 
coroner, and a land surveyor. 

The parish existed in Virginia as a minor unit of local 
government. The chief authority in the parish was the 
vestry, a body composed usually of ''twelve of the most 
sufficient and selected men within its limits." At first 
these vestrymen were elected by the people, but they 
later came to fill vacancies in their own number and thus 
became a close corporation like the county court. They 
had some functions with regard to taxation, the selection 
of the minister, and the relief of the poor, and to see- 
ing to the care and education of poor children. They ap- 
pointed two church wardens, who had peculiar charge 
over the morals of the people. It was their duty to present 
to the county court persons guilty of drunkenness and 
swearing and other moral offenses. 

The Dutch occupation of New Amsterdam left no trace Local 
in the local institutions of the colony. After the English ^^ew^Ywl 
conquest New York was divided into counties, in which 
the chief authority was the county court, made up of jus- 
tices appointed by the governor. The powers of this 
court differed somewhat from county to county, but in- 
cluded a good many of a strictly administrative kind, 
such as determining the number of constables and over- 
seers of highways for each precinct, granting Hquor hcenses, 
appointing inspectors of flour, etc. The powers of the 



2o8 



LOCAL GOVERNMENT 



Local gov- 
ernment in 
Pennsyl- 
vania 



town and of the town meeting were gradually enlarged 
with the influx of settlers from New England, until they 
possessed a very substantial authority. In 1703 the 
town meeting was given the power to elect among other 
officers a supervisor. The supervisors of all the towns 
in the county were required to hold at least one meeting 
a year to "compute, ascertain, examine, oversee, and 
allow the contingent publick the necessary charges" of 
the county. As time went on, this board of supervisors 
came to exercise more and more power and ultimately 
took over the administrative duties of the county court 
and a multitude of new duties which the advance of civi- 
lization created. The supervisor also became the most 
important officer in his own town. We may sum up the 
New York system of local government by saying that both 
town and county were important units of local govern- 
ment, and that the affairs of the county were regulated by 
a board made up of town officers. 

At the outset in Pennsylvania governmental authority 
was vested in the county court, and after 1722 in the gen- 
eral quarter sessions of the peace, made up of justices 
appointed by the governor. The justices of the peace 
were assisted in financial matters by assessors, who, after 
1696, were elected by the people in open county meeting. 
After 1724 the functions of assessing and levying taxes 
were taken from the justices altogether and given to a 
board of three commissioners elected by the people of the 
county. A township division was organized for certain 
purposes, as, for example, for the relief of the poor and 
for highway purposes. The township did not, however, 
develop great vitality. 



RURAL LOCAL GOVERNMENT IN ENGLAND 209 

SUGGESTIONS FOR FURTHER STUDY 

None of the general works on American government give as full 
an account of this subject as appears in the text. 

The best condensed account is to be found in Fairlie, J. A., 
Local Government in Counties, Towns, and Villages, pp. 3-32. Fiske, 
John, American Political Ideas, pp. 1-57, will be found very sugges- 
tive, and because of Fiske's inimitably clear style high school stu- 
dents will readily understand it. Hosmer, J. K., Anglo-Saxon 
Freedom, pp. 1 10-129, will prove useful. Hart, A. B., American 
History Told by Contemporaries, vol. ii, pp. 205-223, gives samples 
of the records of a county court, a parish meeting, and a town meet- 
ing, with other interesting material. Many of the old New England 
towns have pubHshed records. Where available, they may be used 
with profit. 

For teachers, the best single authority is Howard, G. E., Local 
Constitutional History of the United States, published as a separate 
volume in the Johns Hopkins University Studies. Channing, 
Edward, Town and County Government in the English Colonies of 
North America, \n Johns Hopkins University Studies, vol. ii, No. 10, 
is a very briUiant essay. Adams, Herbert B., The Germanic Origin 
of New England Towns, in the same, vol. i, No. 2, is very interesting 
and stimulating, although his theory is combated by the principal 
Enghsh authorities, such as Maitland, Vinagradoff, Seebohm, etc. 
See also Ingle, Edward, Local Institutions of Virginia, in same, vol. 
iii, Nos. 2 and 3 ; Wilhelm, Lewis, Local Institutions of Maryland, 
in same, vol. iii, Nos. 5, 6, and 7 ; and Bruce, P. A., Institutional 
History of Virginia in the Seventeenth Century. Odgers, W. B., 
Local Government of England, gives an excellent brief account of the 
historical development of local government in that country. 

Topics : 

The County in Colonial New England. 

The Officers of a New England Town (see Howard, Local Con- 
stitutional History, pp. 96-99). 

The Virginia County Court. 

The New England Town Meeting (using the records of a town 
where available). 



CHAPTER XVIII 



The sources 
of county 
government 



The county 
board 



COUNTY, TOWN, AND TOWNSHIP GOVERNMENT 
A. THE COUNTY 

Every state in the United States is divided into coun- 
ties.^ For many years the organization of counties and 
the powers which they might exercise were made the sub- 
jects of special acts for each county. This resulted in 
great abuses. Legislatures almost always passed such 
local acts on the recommendation of a member or members 
from the locality, and without any sufficient criticism of 
their merits. The more recent state constitutions have 
forbidden special acts relating to county government, 
and the affairs of the county are regulated by what are 
known as ''general" laws. The courts, however, have 
been so liberal in permitting the classification of counties 
that a good deal of legislation, particularly special in its 
character, is still passed. The people of the state of Cali- 
fornia adopted in 191 1 a constitutional amendment per- 
mitting the people of counties to elect boards of free- 
holders, for the purpose of framing county charters by 
which the number and functions of county officers, to- 
gether with their salaries and the method of their selec- 
tion, might be regulated. 

The principal governmental authority in the county, 
which makes the appropriations and lays the taxes for 
the support of the county government, and to which all 
powers conferred upon the county belong, except those 
which by law are vested in particular offices, is the county 

^ In Louisiana the division corresponding to the county is known as 
the " parish." 

210 



COUNTY AND TOWNSHIP GOVERNMENT 211 

board. There are two great types of county boards. 
The first consists of three to five (occasionally more) 
members, elected either at large or by districts especially 
created for this purpose. This county board is variously 
known as the board of commissioners, board of super- 
visors, county board, and, in Louisiana, the pohce jury. 
It is easy to see the colonial ancestor of this type of gov- 
ernment in the institutions of Pennsylvania as we have 
described them. The other great type is that of a large 
board, made up of supervisors elected one from each town 
or ward of a city within a county. This system has 
developed from the local government system of colonial 
New York. It prevails in New York, New Jersey, 
IlHnois, Michigan, and Wisconsin.^ 
It is very difficult to determine which of the two types Misgovem- 

has produced the worse results . In both of them corruption "^®^* ^^ 
. . ^ county 

and jobbery have played a very considerable part. This, boards 
however^ is not so much due to the type of board used as to 
the utter indifference of most of the people to the character 
of their county officers. In this respect county mis- 
government is chargeable to the long ballot, to which we 
have previously referred. As a matter of theory the 
small county board elected at large appears to afford a 
better prospect of holding the members responsible for 
their official conduct than does the large board elected 
by towns. 

1 Some of the Southern states employ for their county institutions names 
which seem to exclude them from both of the classes described above. In 
Kentucky, Tennessee, and Arkansas, a quarterly court, made up of magis- 
trates and justices of the peace, is still the financial and administrative 
authority in the county. In the two last, the districts from which the jus- 
tices are elected are so numerous as to cause the court to resemble the boards 
of supervisors of New York or Wisconsin. In Kentucky the number of 
magisterial districts is only eight. In Georgia most of the county adminis- 
tration is conducted by the judge of probate, to whom has been given the 
old English term of "Ordinary," limited in certain respects by the grand 
jury. 



212 



LOCAL GOVERNMENT 



The pow«rs 
of the 
county 
board 



County 
officers 



The first and most important power of the county 
board is its power to make appropriations for the support 
of county government and to levy taxes necessary to 
meet them. The board also acts as a board of equaliza- 
tion in hearing the appeals of those who are aggrieved by 
the assessment of their property by county and township 
assessors. Another important function is the building 
and maintenance of roads and bridges. For this purpose 
a considerable portion of the county revenue is expended, 
and until a few years ago almost all road building was 
done under their authority. The county board is also 
intrusted, outside of New England, with the care of the 
poor, and in some states with the care of the insane. It 
also constructs and cares for the county buildings, which 
include the courthouse, the jail, the county hospital or 
almshouse, ajid other buildings which the county busi- 
ness may necessitate. It has also some authority in the 
matter of passing health, police, and other local ordi- 
nances.^ Wherever the county board possesses a function 
which involves the necessity of employing persons to 
carry it out, they usually fix the number and compensa- 
tion of such persons. Everywhere, except in New Eng- 
land, the board is the canvassing authority in elections; 
that is, the returns from various precincts are reported 
to them and they make up the official count for the county. 

Besides the county board there are in every state of the 
Union officers more or less numerous who are ordinarily 



^ From this general statement of the powers of county boards, certain 
important exceptions must be made. In New England the county is practi- 
cally nothing more than a judicial district, the principal powers exercised 
by counties elsewhere being vested in the towns. The county boards have 
very Uttle to do except erect and maintain the county buildings, and in 
Massachusetts and New Hampshire they do not have the power of appro- 
priating money, this being done in the former by the legislature and in the 
latter by a convention composed of the members of the legislature from the 
coimty. 



COUNTY AND TOWNSHIP GOVERNMENT 213 

elected by the people. First among these are the judicial 
officers, to whose functions we have already referred (see 
Chapter XIII). There then follows a list of officers 
whose names or functions are practically the same through- 
out the country. The smaller counties frequently com- 
bine the duties of two or more of them in one. The list 
includes the sheriff, coroner, county clerk, register of deeds 
or recorder, auditor, assessor, tax collector, surveyor, and 
superintendent of schools. The people of a great majority 
of the counties, outside of New England, elect practically 
all of these officers. Here again we meet the problem of 
the long ballot and its consequences. The general charac- 
ter of county officers has not been very high. The people 
are apt to take more interest in the election of the prose- 
cuting attorney and superintendent of schools than in any 
of the others, and these are usually the best filled of the 
offices. As distinguished from the county board, the 
elected county officers are usually fairly well paid, some- 
times by salary, sometimes by fees. The sheriff in the 
more populous counties used to make a small fortune in 
fees. The fee system has now fallen into disfavor and 
is rapidly being abolished. The salaries or fees of these 
officers are usually fixed by state law, and if they are paid 
by salary the county board must include that salary in 
its annual appropriations. These officers are practically 
independent of the county board and of one another. 
There is no provision for securing cooperation among 
them, and they not infrequently fall out with one an- 
other, to the great detriment of the county service. 

It is one of the marvels of American politics that a Reform of 
county system such as ours should run with even a fair golj^^jnent 
degree of smoothness. It is made possible only by the 
complacency and good nature which characterize the 
American people. No private business could be conducted 



214 LOCAL GOVERNMENT 

on such a basis. The stockholders of a corporation which 
decided to carry on its business by choosing a board of 
directors and six or eight managers, each independent in 
his particular field, and with no provision for securing 
harmony among them, would be considered mad. The 
movement has already begun for a reform of county gov- 
ernment. The new county charters of Los Angeles and 
San Bernardino, California, provide for the appointment 
of practically all non- judicial county officers by the board 
of supervisors. This means a shorter ballot and a simpler 
and better coordinated administration. Some such com- 
mon-sense arrangement is bound to be adopted in time 
throughout the whole country. It is significant that they 
were made in the counties mentioned as soon as the power 
of deciding such matters was taken away from the politi- 
cians and given directly to the people. 

The sheriff We have already seen something of the duties of the 
sheriff as the executive officer of the courts in carrying 
out its orders and processes. He is also the custodian 
of the county jail, and is sometimes the county executioner. 
He is the general conservator of peace in the county, per- 
forming for the county, outside of incorporated cities, 
the duties which within those cities are performed by the 
police. The sheriff has the power of calling upon the 
citizens of the county to aid him in the pursuit of crimi- 
nals or in the suppression of disorder, and all adult male 
persons are bound to obey when called upon. This mus- 
tering of any portion of the people of the county is called 
"posse comitatus." This power becomes of pecuhar 
importance in case of strikes and riots. 

The coroner The coroner is a curious survival of an ancient English 
institution. His sole function has long been to investi- 
gate the cause of death of persons who die by violence or 
in a suspicious manner. The inquest, as it is called, is 



COUNTY AND TOWNSHIP GOVERNMENT 215 

made by the coroner in the presence of a jury of six persons 
whom he calls together. Witnesses are examined, the 
scene of the death and the body are viewed, and the jury 
then returns a verdict as to the manner in which the 
deceased met his death. Some sort of prompt investi- 
gation into such matters is of course highly desirable, but 
it could be better conducted — as has been proved in 
Massachusetts — by skilled medical examiners, under 
the direction of the prosecuting attorney. The spectacle 
of a rather less ignorant coroner and a rather more 
ignorant jury, solemnly deliberating over the cause 
of death of some unfortunate fellow-being, would be 
humorous if their work could be a subject for mirth. 

Except in those states where the assessment of property Financial 
for taxation is a town function, there is a county assessor ^^^^^^ 
who puts a value upon every piece of property in the 
county. The county board, having determined the 
amount of money it must spend, determines the rate of - 
taxation. The tax bills are then made out, including 
state taxes, by the tax collector or other officer who may 
be charged with this duty, and are paid to him or to the 
county treasurer. In any event the money is ultimately 
deposited with the treasurer, who turns the state's share 
over to the state treasurer and deposits the balance in a 
bank or banks in accordance with law. It is usual to have 
also a county auditor, who is really the county bookkeeper. 
He is the chief disbursing agent of the county, and his 
signature is necessary on every warrant or order for the 
payment of money before the county treasurer can 
honor it. 

Education is still a matter of direct county manage- School 
ment in many of the Southern and a few of the more oncers 
thinly settled Western states. In these states there is 
always a county board of education, sometimes appointed 



officers 



2i6 LOCAL GOVERNMENT 

by some central authority, sometimes by the county 
board, and sometimes elected by the people. This board 
makes appropriations for the support of education, 
handles the school property, and usually appoints the 
district trustees and sometimes the teachers. Its execu- 
tive officer is the county superintendent, appointed by 
itself or elected by the people. He or she is generally a 
person of teaching experience, who handles the detailed 
and professional matters connected with school admin- 
istration. Elsewhere in the country the immediate 
control of rural education is in the hands of school district 
trustees. In these latter states the county superintendent, 
usually elected by the people, exercises supervisory 
powers over the local authorities (see Chapter XXXI). 
other The county in many states is the unit of health admin- 

istration. For this purpose the county board is con- 
stituted the board of health, or a separate board of health 
is created. The health officer is then appointed by the 
board (see Chapter XXXII). In many states there is 
a county register of deeds or recorder, with whom all 
transfers of land are recorded. In some states, where 
there is no judge of probate, there is a public adminis- 
trator to attend to matters connected with the estates 
of persons dying intestate. It is common also to have a 
county surveyor, usually paid by fees, who, on the ap- 
plication of private persons, makes surveys, and in whose 
offices the surveys of various plats and tracts are filed. 
There are several other officers of some importance in 
every county, such as the superintendent of the county 
hospital or county poor farm, the engineer, under whose 
direction roads, bridges, and buildings are constructed, etc. 
The county exists largely as a unit for the execution 
of state business. Its judicial ofiicers, sheriff, clerk, 
assessor, tax collector, etc., are largely engaged in the 



COUNTY AND TOWNSHIP GOVERNMENT 217 

service of the state. Over their conduct the state has The county 
very sHght control. Their first and most effective re- »^<l*lie 

Stfl.t6 

sponsibiHty is to their local constituents. This makes 
the enforcement of state laws largely a matter of local 
pubUc opinion. A district attorney, for example, prose- 
cutes or does not prosecute gamblers according as his 
political supporters are for or against gambUng. In a 
few states the governor can remove sheriffs and district 
attorneys who neglect their duty. In most states, how- 
ever, he is practically powerless until circumstances 
justify the use of the militia. No other country in the 
world leaves such latitude to local officers. We are 
gradually moving toward more central control of county 
administration. Some phases of this movement will be 
discussed when we come to deal with the functions of 
government. 

B. THE TOWN AND TOWNSHIP 

We have seen how the town became the important The New 
unit of local government in New England. The town is ^^sland 
usually of from twenty to forty square miles in extent and 
of irregular outline, except in northern Maine, where the 
Congressional townships six miles square have been utilized. 
The towns vary very much in population — all the way 
from Brookline, Mass., with 27,792, to places of only 
a few hundred inhabitants. Most of these towns con- 
tain but a single center of population and are geographic 
and social units. With few exceptions there is no separate 
government for the village or "center," and as the powers 
of the county are very slight, the town government is 
practically the only local authority. The objects for 
which its powers may be employed include roads (paving, 
repaving, lighting, cleaning, and watering of streets), 
sewers, relief of the poor, education, water supply, parks. 



2i8 LOCAL GOVERNMENT 

libraries, electric light and power, hospitals, etc. For 
these purposes it has the power of taxation. It is the unit 
for the assessment of property and for the collection of 
state and county as well as town taxes. 
The town All the above powers and many others which lack of 

meeting space forbids us to enumerate are vested in the assembly 

of all the voters of the town, or the town meeting. At 
least one meeting must be held each year. This annual 
meeting occurs in Connecticut in October and in the 
other states in the spring. It hears the reports of the 
various ofhcers for the year preceding, allows their ac- 
counts, elects their successors, adopts such by-laws as 
seem necessary, and makes the appropriations and levies 
the taxes for the ensuing year. Special town meetings 
may be held at any time on the call of the selectmen. It 
is the duty of these officers to give notice of all town meet- 
ings and to include on the "warrant" (the notice of the 
call) a statement of the business to be taken up. The 
meeting is held in the town hall and usually lasts all day. 
It is called to order by the town clerk, and its first duty 
is the election of a moderator, as the chairman is called. 
The morning is spent in voting by ballot for the principal 
town officers, town elections being conducted substan- 
tially as are all other elections. Early in the afternoon 
the business session begins. It is usually well attended. 
The retiring officers present their reports, which in the 
larger towns have been previously printed and distributed. 
Any citizen present is free to express any criticism or ask 
any question. No better method of checking the con- 
duct of public officers has ever been discovered than this 
system of report in open meeting. Keen questions and 
sharp comment rip open and expose to view the true 
inwardness of the officers' behavior. Then comes the 
dispatch of various matters of business set forth in the 



COUNTY AND TOWNSHIP GOVERNMENT 219 

warrant. Over them there is Hkely to be sharp debate. 
One man is as good as another in town meeting, and while, 
as in all assemblies, a few men do most of the talking, 
any man may say his say or propose an amendment. 

At the head of the administration of the town stand the The board 
board of selectmen.^ Their number is usually three, but of selectmen 
occasionally is as high as nine. The term is usually one 
year, but in a few towns it is three years, — the selectmen 
retiring in rotation. Reelection is rather more frequent 
than in any other phase of our political life. Practically 
speaking, they are the deputies of the town meeting to 
carry on its work in the interim between its meetings. 
While their powers vary a bit from town to town, a safe 
general statement may be made, that they can do any- 
thing the town meeting can do, except levy taxes, even 
to filling vacancies in the elective offices. All they do, 
however, must be by warrant of law or order of the town 
meeting. Their responsibility is made very effective, 
as we have seen. 

Of the other town officers the town clerk is the most other town 
important. He keeps the minutes of the town meeting 
and all the other town records. Marriage licenses are 
issued by him, and he registers births, deaths, and mar- 
riages. In Connecticut and Rhode Island he records 
deeds, mortgages, etc. This office is apt to be treated as 
non-political, and a good town clerk will be reelected year 
after year. Town treasurers, constables, highway officers 
of various designation, and school boards are also usually 
elected by each town.^ There are a great many town 

1 Town council in Rhode Island. 

2 Justices of the peace, who are not, strictly speaking, town officers, are 
elected by the towns, except in Massachusetts and Maine, where they are 
appointed by the governor. Sometimes the selectmen and sometimes 
elected assessors assess property for taxation. Similarly the selectmen or 
overseers of the poor handle the problem of poor relief for the town. 



oflBcers 



220 



LOCAL GOVERNMENT 



Comments 
on the New 
England 
town 



offices of ancient origin now ordinarily filled by the ap- 
pointment of the selectmen. Some of these offices are 
obsolete, but no salary is attached, and as an "office," 
however insignificant, tickles the vanity of many people, 
they remain. The more modern functions of the govern- 
ment are usually administered by boards elected for over- 
lapping terms, e.g. park board, library trustees, water com- 
missioners. 

At its best, the New England town meeting has never 
been equaled as a mechanism for local government. No 
mere representative system can give the opportunity for 
real participation in government which a town meeting 
affords. Even the small boys who come to enjoy the fun 
from the gallery are taught that government is a living 
reality. By grappling first-hand with their own small 
local problems, men are trained to take part wisely in the 
bigger affairs of state and nation. Town-meeting gov- 
ernment is practically graftless government. The worst 
that can happen to it is to fall under the spell of some 
demagogue, which is not likely if the average intelligence 
of the community is high. The most favorable circum- 
stances for the town meeting are a town of moderate size, 
high average intelligence, and common interests.^ The 
presence of a large ignorant population makes any good 
government difficult, but it is a particular obstacle to the 
success of the town meeting. Other evils spring up when 
the village and the rural districts are at loggerheads or 
when a large and cohesive foreign element is present. 
On the whole. New England town government has in its 
nearly three centuries of history proved a great success. 

1 While there is a limit to the population which can make its local laws 
by town meeting, we do not think the numbers of a town need be as small 
as we once did. For example, in Massachusetts, where a town may become 
a city when it passes twelve thousand in population, there are sixteen towns 
above that level. 



31 



32 



33 



34 



35 



38 



24 



25 



36 





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6 5 4 3 2 I 

The sections of a congressional township. Each township is subdivided into 
thirty-six sections, each one mile square and numbered as here shown. 




Map showing the intersection of a base line with a principal meridian. The 
point where the lines intersect is the starting point for surveying all the land 
in that region. 



COUNTY AND TOWNSHIP GOVERNMENT 221 

The fact that Congress for the purpose of disposing of Weakness of 
the pubUc lands divided the territory west of the AUe- g^i*unS' 
ghanies into uniform districts six miles square and called outside of 
them townships might have been expected to encourage eq^^-jj 
the development of township government. As a matter 
of fact, however, these arbitrarily bounded areas were 
unfit for governmental purposes. The New England 
towns had been created one after another to give local 
self-government to communities as they sprang up. The 
lines of the Congressional township of the West as often 
as not failed to coincide with the actual settlements. A 
village partly in one township and partly in another could 
be satisfactorily governed only by the creation of a village 
government. Thus, throughout the West, we find every 
little center of population is a village or city removed for 
most purposes from the authority of the township. This 
removal of the village from the township greatly weakened 
the latter. It was left to be simply an aggregate of scat- 
tered farms which might just as well have gone with the 
township east, west, north, or south of it. 

We have already seen that the town developed rather Organized 
rapidly in New York and slowly in Pennsylvania. An- |°^f]^[g 
other point of distinction was that in New York counties Atlantic and 
were governed by boards of town officials called "super- ^^^^^ 
visors," while in Pennsylvania the county was adminis- 
tered by three commissioners elected by the people of 
the county. Each of these states has been imitated by 
its neighbors to the west. In fifteen states the townships 
are organized for general purposes of local self-govern- 
ment.^ Township meetings similar to the New England 
town meeting, but not so well attended or powerful, are 

1 New York, New Jersey, Pennsylvania, Ohio, Indiana, Illinois, except 
in a few southern counties, Michigan, Wisconsin, Minnesota, North Dakota, 
South Dakota, Iowa, Kansas, Nebraska, and Missouri. 



222 



LOCAL GOVERNMENT 



Divisions of 
the county 
in the West 
and South 



held in New York, New Jersey, Michigan, IlHnois,^ Wis- 
consin, Nebraska, Minnesota, and the Dakotas.^ These 
states all lie directly west of New England, and the New 
England element in their population is very strong. 
Among the states having organized township govern- 
ment, there are considerable differences as to the relative 
weight of the county and township. In New York the 
township is perhaps weakest, since it cannot levy taxes, 
this being done by the county board of supervisors. 
In nine of the fifteen states the executive business is in 
the hands of a single officer, called most commonly a 
''supervisor" or "trustee" (in Wisconsin, "town chair- 
man").^ In addition, there is usually an elective town- 
ship board of three freeholders, which has charge of the 
township finances. In the remaining six states ^ the 
principal township authority is a board of three members 
elected by the people of the county. The other elective 
township officers are clerks, assessors, treasurers, justices 
of the peace, and constables. 

Even in the states which are so sparsely populated as 
to make it impossible or undesirable to have the township 
organized as a unit of self-government, it is necessary 
for convenience in administration to divide the county 
into one or more sets of districts. These districts have a 
wide variety of names and functions. Where the Congres- 
sional township is not made the district, it is usually 
larger, both in area and population, than the townships 
of the Central states. They deal with schools, roads, 



* In a few counties. 

2 The first five in this list constitute their county board on the New York 
pattern. 

3 Their functions are various. In New York and Missouri they act as 
town treasurers. In Michigan and Kansas they are the town assessors. 
In Indiana they until recently managed all the town business. 

4 Pennsylvania, Ohio, Iowa, Minnesota, North Dakota, and South 
Dakota. 



COUNTY AND TOWNSHIP GOVERNMENT 223 

elections, justice, etc. Their officers are generally elected, 
but in some instances are appointed. The ''magisterial 
district" in Virginia chooses a supervisor (member of the 
county board), three justices of the peace, constable, and 
an overseer of the poor. In California, as in most of the 
other far Western states, the township elects only justices 
of the peace and constables. 

SUGGESTIONS FOR FURTHER STUDY 

There is comparatively little literature on the subject of rural 
local government. The only treatment of the subject which will add 
very much to that in the text available for young students is Fairlie, 
J. A., Local Government in Counties, Towns, and Villages. See Beard, 
pp. 638-655, and Readings, pp. 556-566; Bryce, ch. xliii. Some 
good pamphlet literature may be obtained from the New York 
Short Ballot Organization, 381 Fourth Avenue, New York City, 
and the Alameda County Tax Association, Oakland, California. 
Material may also be found in the textbooks on the government 
of individual states. 

For teachers : The Annals of the American Academy of Political 
and Social Science for May, 1913, is devoted to county government. 
It contains the latest and best body of information on the subject. 
Ashley, P. V., Local and Central Government, and Goodnow, F. J., 
Comparative Administrative Law, deal in a comparative way with the 
organization of local administration in the United States and other 
countries. The latter especially is a work of great value and authority. 

Topics : 

County, town, and township officers and their duties will supply 
sufficient topics. A study of the duplication of work by county 
and city officers may, when such duplication exists, be assigned 
to several students. 



PART V 
GOVERNMENT OF THE UNITED STATES 



CHAPTER XIX 
THE CHOICE OF A PRESIDENT 

The President is chosen for a four-year term beginning The elec- 
on the 4th of March following his election. On the first ^°^^ system 
Tuesday after the first Monday in November in each 
"leap year" (1908, 191 2, 1916, etc.) the voters in the 
respective states cast their ballots for presidential electors 
equal in number to the senators and representatives from 
that state. Our forefathers intended that these electors 
should be the best citizens of the state/ and that they 
should independently and wisely cast their ballots for 
the man in their opinion best fitted for the presidency. 
As a matter of fact, they have never exercised discretion 
of any sort, always voting in accordance with the declared 
wishes of the party nominating them. They are a mere 
tabulating device for recording the vote of the state. 

One result of the system is to make the election one by Results of 
states instead of by popular majority. Twice a President system 
has been chosen by a majority of the electoral votes, while 
his opponent had a majority of the popular vote. Hayes 
was thus elected over Tilden in 1876 and Harrison over 
Cleveland in 1888. Another result has been to induce 
the parties to nominate their candidates almost exclusively 
from a small group of Northeastern states. We have 
never had a President from west of Illinois. We have 
not had a President from south of Mason and Dixon's 
Line since Zachary Taylor, nor one from New England 
since John Quincy Adams. It is of course three times 
more important to secure the thirty-nine electoral votes 

1 Except federal office holders, who were excluded by the Constitution. 

227 



228 GOVERNMENT OF THE UNITED STATES 

of New York by a majority of one thousand than the 
thirteen of Cahfornia by one hundred thousand. A 
candidate from a large state is to be favored over one 
from a small state if the parties are evenly matched in 
the former. Pennsylvania — which because of its interest 
in protection was counted until 191 2 as safely Republican 
— has had but one candidate for the presidency since 
1856, and he was unsuccessful. It is not to be supposed 
that all the best material for Presidents is to be found in 
New York and Ohio.^ Even if voting by states is to be 
continued, it would greatly simplify the ballot and the 
problem of counting the vote if the electors were abolished. 
Many people believe it would be still better to elect the 
President by direct popular vote. 
Composition Candidates for the presidency are nominated by na- 
co^^en°ions ^^^^^^ conventions of the several parties. We have 
Call and already seen in a previous chapter the origin of the national 
delegates conventions. They are called, in the case of established 
parties, by their national committees. These ''calls" 
are issued ten or eleven months before each presidential 
election, and are directed to the state committees. The 
Democratic call simply names the time and place of the 
convention meeting, and states the number of delegates 
to which each state is entitled; the Republican call 
specifies also the method by which delegates shall be 
chosen. At one time there was considerable variety in 
the method of selecting delegates and in the number ap- 

1 The following list of elected and defeated candidates for the presidency 
enforces the principles laid down in the text : 



Year 


Elected 


Defeated 




1892 


Cleveland, N. Y. 


Harrison, Ind. 




1896 


McKinley, Ohio 


Bryan, Neb. 




1900 


McKinley, Ohio 


Bryan, Neb. 




1904 


Roosevelt, N. Y. 


Parker, N. Y. 




1908 


Taft, Ohio 


Bryan, Neb. 




1912 


Wilson, N. J. 


Roosevelt, N. Y. ; 


; Taft, Ohio 



THE CHOICE OF A PRESIDENT 229 

portioned to each state. Since 1872 both RepubHcan 
and Democratic parties have allowed each state twice as 
many delegates in the national convention as it has 
senators and representatives in Congress.^ 

Serious evils have arisen in the Republican convention 
from the fact that the Southern states, in which the Re- 
pubUcan party has practically no membership, have had 
as large a proportion of delegates as states in which the 
Republican party was a real factor in politics. Both 
parties provide also for the election of a number of alter- 
nates equal to the number of delegates, who have the right 
to sit in the convention, but not to vote except in the 
absence of delegates. The Republican party in all states, 
and the Democratic party in some states, elects two 
delegates from each congressional district, and four from 
the state at large. Until the introduction of the direct 
primary, these delegates were selected by congressional 
district and state conventions. In New York and a few 
other states the state convention of the Democratic party 
selected the whole body of delegates to the national con- 
vention. By the direct primary, or the still more radical 
presidential preference primary, this old method of select- 
ing delegates has been greatly changed (see Chapter VII). 

The national convention always meets in some great Meeting of 
hall, of which the main floor is reserved for the delegates ^0^^°^^^^" 
and alternates. The location of each state delegation 
is marked by a standard bearing the name of the state. 
Hosts of newspapermen, messengers, clerks, and other 
assistants are provided for. The galleries, which are usu- 

1 Each of these parties also allows the territory of Hawaii six delegates. 
The Republican party apportions two each to the District of Columbia, 
Alaska, Porto Rico, and the Philippines, while the Democratic party awards 
them six each. The total number of delegates in the Republican national 
convention of 191 2 was 1078, and in the Democratic convention of the same 
year 1094. 



230 GOVERNMENT OF THE UNITED STATES 

ally spacious, are open to those of the public who have been 
fortunate enough to obtain tickets. Frequently the gal- 
leries vociferously express their enthusiasm for a particular 
candidate. There is very little chance in such a gather- 
ing for calm deliberation, and more than one national 
convention has been stampeded by the noisy and con- 
tagious enthusiasm of the delegates and spectators. If 
there are any disputes as to who has been rightfully 
chosen delegate, this matter is settled provisionally by 
the national committee, which mukes up what is known 
as the "temporary roll" of the convention. 

The opening session is called to order by the chairman 
of the national committee. After the reading of the call 
of the convention and a prayer by some clergyman, the 
national chairman announces the choice of the national 
committee for temporary chairman and other temporary 
officers. Sometimes, although not usually, an opposing 
candidate for temporary chairman may be nominated 
from the floor. In the Republican national convention 
of 191 2, for example, this was made a test of strength 
between Taft and Roosevelt. The temporary chairman 
is escorted to the platform and delivers a political ha- 
rangue, calculated to stir the enthusiasm of the delegates. 
The remainder of this first session is occupied in naming 
the members of four committees, those on credentials, 
permanent organization, rules and order of business, and 
platform and resolutions. Each state is entitled to one 
member on each of these committees. The roll of states 
is called and the chairman of each delegation announces 
its choice of a member for each of these committees. 
Reports of The next session of the convention is devoted to the 

reports of the committees. The first committee to report 
is that on rules and order of business. It recommends the 
adoption of the rules of the previous convention, and of the 



committees 



THE CHOICE OF A PRESIDENT ^ 231 

national House of Representatives where applicable. The 
next report is that of the committee on credentials. To 
this committee have been turned over the findings of the 
national committee on all contests. In its report it rec- 
ommends the disposition to be made of these contests 
by the convention. It usually recommends the seating 
of one or the other of the contestants, but sometimes 
recommends that both contestants be seated and the 
vote divided between them. Occasionally, as in the 
Republican convention of 191 2, a bitter fight may 
be made upon adopting the report of the credentials 
committee. 

When the permanent make-up of the convention has 
been determined, the committee on permanent organiza- 
tion presents a Hst of nominations for permanent chairman 
and other officers. The permanent chairman, on being 
escorted to the chair, delivers another poUtical harangue, 
sometimes known as the "keynote" speech, because it 
is supposed to outline the issues of the campaign that is 
to come. Next comes the report of the committee on 
platform and resolutions. The task of this committee is 
to put forth a set of party principles which will be as at- 
tractive as possible to the ordinary voter. Sometimes 
when issues of great importance are to be before the 
country, debates take place in the convention upon amend- 
ments proposed to the platform recommended by the com- 
mittee. Ordinarily, however, the platform is recognized 
as merely " honey to catch flies," and no great weight is 
attached to it, either in convention or out of it. 

The nomination of the President is the last task of the Delegates' 
national convention. In these days practically all of the Pledges 
delegates have been pledged in advance for one candidate 
or another. After the first two or three ballots have been 
taken, however, if it is apparent that the candidate to 



232 GOVERNMENT OF THE UNITED STATES 



Nomination 
of the 
President 



whom they have been pledged stands no chance of nomi- 
nation, the delegates feel free to vote for other candidates. 
If the direct election of delegates by the people comes to 
be a general rule, it will bring with it this serious question : 
Must a delegate, elected because pledged to a particular 
candidate, continue to vote for that candidate at all stages 
of the convention? If this question is answered in the 
affirmative, it will mean that the convention will cease 
to be a deliberative body and that there will be no op- 
portunity for compromise and adjustment in the selection 
of candidates. In this way the very purpose of the con- 
vention will be defeated. 

In the Republican national convention a simple ma- 
jority of the delegates is sufficient to secure the nomination. 
In the Democratic convention the successful candidate 
must have received the votes of two thirds of the delegates. 
Each delegate to the Republican national convention 
votes as an individual. The delegates to the Democratic 
national convention vote by states, the majority of each 
delegation determining how the vote of that delegation 
shall be cast. It not infrequently happens in the Re- 
publican convention that the nomination is made on the 
first ballot, but this is much more rare in Democratic 
conventions. In both bodies balloting is frequently 
necessary. It took thirty-six ballots to nominate Garfield 
in 1880, and forty-six to nominate Woodrow Wilson in 
191 2. There is seldom any contest over the nomination 
for Vice-President. The nomination usually goes to 
some member of the faction which has been defeated in 
the contest for the presidential nomination. Sometimes, 
however, the choice is made in the hope of carrying a 
doubtful state. 

We have already seen something of the method of con- 
ducting national and state poHtical campaigns (see Chap- 



THE CHOICE OF A PRESIDENT 235 

ter VIII). We only need to say here that the election Presidential 
of the President occasions incomparably more excitement <^*™P*^sn 
than any other election. During the period of the cam- 
paign, which extends from the time that the conventions 
make their selection in June or July until the first Tuesday 
after the first Monday in November, the country is agi- 
tated to fever heat. The position is by far the greatest 
one filled by popular election anywhere in the world, and 
the consequences depending upon it are of tremendous 
importance. The candidate for the presidency is for- 
mally notified of his nomination by a committee appointed 
by the national convention. In reply to the notification 
the candidate delivers a speech of acceptance. In it he 
lays down the principles upon which his administration 
will be conducted if he is elected, and this personal pledge 
is regarded as much more important than the party plat- 
form. Until recent years candidates for the presidency 
have not usually taken a very active part in the campaign. 
President McKinley, for example, in the campaign which 
preceded his first election remained quietly at his home. 
Bryan, Roosevelt, Taft, and Wilson, however, ''took 
the stump" in their own behalf. On the night following 
the election the people anxiously await the returns. 
Sometimes, if the election has been very one-sided, the 
results can be delivered by ten o'clock. At other times 
it may hang in the balance for hours and even days. One 
of the most hopeful things in American national Hfe is 
the spirit with which, after the excitement of the cam- 
paign, the people acquiesce in the result. The defeated 
party usually expresses some chagrin, but its members 
patiently settle down to await another chance four years 
later. 

The electors meet on the second Monday in January 
at the capitol of each state and cast their ballots for Presi- 



234 GOVERNMENT OF THE UNITED STATES 

Counting the dent and Vice-President separately.^ Three certificates 
electoral ^£ ^j^^ result of the vote are then prepared, one of which 
is deposited with the United States district court, a second 
mailed to the President of the Senate, and the third dis- 
patched to him by the hand of a special messenger. On 
the second Wednesday in February the Senate and House 
of Representatives meet in joint session. The President 
of the Senate opens the certificate from each state, and it" 
is then handed to two tellers from each house, who read 
it to the assembly. An opportunity is next given for 
filing objections in writing. 

Prior to 1887 there was much confusion as to the method 
of settling disputes with regard to the count of electoral 
votes. In 1876, when the race between Tilden and Hayes 
was so close that every disputed vote had to be counted 
for the latter in order to elect him, resort was had to an 
electoral commission. This body consisted of five sena- 
tors and five representatives appointed by their respec- 
tive houses, and of five justices of the Supreme Court, — 
four of whom, named in the act, were to appoint the fifth. 
The Senate appointed three Republicans and two Demo- 
crats ; the House of Representatives three Democrats 
and two Republicans ; and the four justices, two of whom 
belonged to each party, named a Republican. The most 
difficult question which they faced was that of double 
returns from each of two alleged state governments in 
Florida and Louisiana. In both states the commission, 
by a majority vote of one, accepted the Republican re- 
turns and every vote was counted for Hayes. 

1 Down to 1800, the electors voted for two persons, and the one receiv- 
ing the highest vote became President, while the one receiving the second 
highest became Vice-President. In the election of that year, however, 
Jefferson and Burr tied for the presidency, thus throwing the election 
into the House of Representatives. In consequence the Constitution 
was amended to provide for a separate vote for each office. 



THE CHOICE OF A PRESIDENT 235 

To avoid similar difficulties in the future, the Act of 
1887 declares that if any state has provided in advance 
a method of settling who have been duly chosen electors, 
such determination shall be conclusive. The governor 
is charged with the duty of certifying those who have 
thus been determined to be the electors of the state. No 
vote lawfully given by these certified electors can be re- 
jected by Congress. Congress may, however, if both 
houses (who retire to their respective chambers for the 
purpose) agree, reject a vote on the ground that it has 
not been regularly given by such certified electors. If a 
question arises as to which of two or more state authorities 
is the one legally entitled to determine what electors 
have been chosen, or if no such determination has taken 
place in the state, only those votes are counted which the 
two houses concur in deciding were cast by lawful electors. 
When all questions with regard to the vote of a state have 
been settled, the two houses resume their joint session 
and go on with the count. When it has been completed, 
the result is announced and the candidates receiving the 
majority of the votes cast are declared President and 
Vice-President. 

If, however, no candidate has a majority, it becomes the Election by 
duty of the House of Representatives to elect the Presi- *he House 
dent, and of the Senate, the Vice-President. The Senate sentatives 
chooses the Vice-President by ballot from the two candi- 
dates highest on the list, each senator having one vote. 
The House of Representatives chooses the President 
from the three highest candidates. The voting is by 
states, each state having one vote. The way the vote of 
a state shall be cast is determined by the majority of the 
members from that state. If they are evenly divided, 
the vote of the state is lost. A majority of states is neces- 
sary to a choice. If the House does not succeed in electing 



236 GOVERNMENT OF THE UNITED STATES 



Inaugura- 
tion 



Succession 



a President by the 4lh of March, the new Vice-President 
becomes President, There is therefore little chance of 
reaching the 4th of March without a new President to 
take office. Only twice — in 1801 and 1825 — have 
Presidents been elected by the House of Representatives. 

The President and Vice-President, together with the 
representatives elected with them, and one third of the 
senators, take office on the 4th of March. This was the 
day which the Congress of the Confederation selected 
for the inauguration of government under the Constitu- 
tion. The ceremonies of inauguration are very impressive. 
There is a great civic and military parade, and an elaborate 
ball. The President takes the oath of office and deUvers 
his inaugural address from a balcony of the Capitol. The 
oath is administered by the Chief Justice of the Supreme 
Court. The season is a very poor one for outdoor fes- 
tivities. A more serious objection to the date of inaug- 
uration is the fact that a Congress and President elected 
in November must wait four months, and through a 
whole session of Congress, before assuming power. Each 
Congress has only two regular sessions, one of which occurs 
after its successor has been elected. This hold-over 
session has sometimes been used, as Adams and the Fed- 
eralists used it in 1801, to embarrass as much as possible 
their successors. An outgoing President and Congres- 
sional majority are not under a sufficient degree of re- 
sponsibility to be safe custodians of power. There seems, 
however, to be no chance of changing the day of inaug- 
uration. It is as firmly fixed by custom as if it were 
embedded in the Constitution itself. 

The Constitution provides that the Vice-President 
sliall succeed the President in the event of his removal, 
death, resignation, or disal)ility. Congress has power to 
provide for further succession in case the Vice-President 



THE CHOICE OF A PRESIDENT 237 

suffers a like fate. In 1791, Congress fixed upon the Presi- 
dent pro tempore of the Senate as next in order, and after 
him upon the Speaker of the House of Representatives. 
Under this system there was danger that the country- 
might, in the event of the death of both the President 
and Vice-President, be left without a President, there 
being no President pro tempore or Speaker. It was also 
possible that the successor might not be of the same 
party as the President, and it is generally recognized that 
a change of party control ought not to result from such 
an accident as the death of the President and the Vice- 
President. An act approved January, 1886, provided that 
after the Vice-President the following officers should suc- 
ceed in the order given: Secretary of State, Secretary 
of the Treasury, Secretary of War, Attorney-general, 
Postmaster-general, Secretary of the Navy, and Secretary 
of the Interior. If any of the above comes to act as Presi- 
dent, he must convene Congress at once. 

The President may be removed by impeachment, as Impeach- 
may any of the executive or judicial officers of the United "^®^* 
States. The proceedings for impeachment originate in 
the House of Representatives, which adopts ''articles of 
impeachment" corresponding to the indictment in a 
criminal case, and appoints ''managers" to conduct the 
case before the Senate. When the President is tried, 
the Chief Justice of the United States presides. Two 
thirds of the senators present are necessary to a conviction. 
The impeachable offenses are "treason, bribery, or other 
high crimes and misdemeanors," which probably means 
any offense against the interests of the nation. Our fore- 
fathers put great rehance in this institution. It has 
turned out, however, to be far from an active instrument 
of government. Only one President, Andrew Johnson, 
has been impeached, and he was acquitted because the 



dential term 



238 GOVERNMENT OF THE UNITED STATES 

vote (35 to 19) did not show a two- thirds majority against 
him. Only three officers have been convicted: Judge 
Pickering in 1804 (he was insane), Judge Humphreys in 
1862, and Judge Archibald in 191 2. 
Thepresi- Bryce and other foreign critics have commented 

adversely on the state of disturbance into which American 
life is thrown every four years by the inevitable presi- 
dential election. It seems to be one of the points of the 
superiority of the English or responsible-ministry form 
of government, that it does not involve any change of 
executive until public opinion, as expressed in the House 
of Commons, demands it. Periodical elections of a chief 
executive, however, are a necessity under our form of 
government. The only practical question for us is the 
length of the period. The Constitution of the Confederate 
States gave the President a six-year term and declared 
him ineligible for another. Bryce has thrown the 
weight of his authority in favor of such a change. The 
Democratic platform of 191 2 called for a single term for 
the President, but without suggesting a lengthening of 
that term. It has been, since Washington set the fashion, 
an unwritten rule that a President might succeed himself 
once and only once. The first serious attempt to break 
down this rule was by Theodore Roosevelt in 191 2. He, 
however, made the points that he was not a candidate 
for three consecutive terms, that he had been elected Presi- 
dent but once and that the real danger comes from a 
President in office seeking to perpetuate himself in power-. 
There is much justice in this contention. A President 
may do a great deal through the power of his position to 
secure at least a renomination from his party. Republi- 
can Presidents have been particularly favored in this 
regard because the Southern states, where almost the 
only Republicans are federal office holders, have had as 



THE CHOICE OF A PRESIDENT 239 

many delegates in the national convention as Northern 
states of equal population. There is one fatal objection 
to any limitation on the number of terms to which a 
President may be eligible, — the folly of changing ad- 
ministrations in a time of crisis. It would have been 
very absurd to have had a limitation which would have 
forbidden a second election to Abraham Lincoln. 

The only limitations on eligibility to the presidency Who are 

other than the third-term tradition are that he shall be ?°^f? . , 

Presidents? 

thirty-five years of age, a natural-born citizen of the 
United States, and a resident of the United States for 
fourteen years. Far more interesting and significant 
are the circumstances of character and training which 
seem to make for success in the race for the presidency. 
It is a common saying that any American boy may aspire 
to become President of the United States. It is, however, 
true that in the one hundred and twenty-four years from 
1789 to 1 9 13, but twenty-four persons have been elected 
President. It is clear that accidents of birth, occupation, 
opinions, health, and a multitude of other things play a 
large part in determining who are to be Presidents. This 
is of course true with regard to the attainment of any of 
the big prizes of life. In the case of the presidency, 
however, there does not seem to be any regular path by 
which it can be approached — not to say reached — by 
those fortunate enough to have some chance to shape 
their careers according to their ambition. In England 
it is known that brilliant service in the House of Commons 
leads to a place in the ministry, and that advancement 
to the premiership itself depends on the degree of talent 
displayed in the lower ministerial positions. In the 
United States there is no such standard process for prog- 
ress toward the presidency. An examination of the 
previous careers of our Presidents shows a great variety 



240 GOVERNMENT OF THE UNITED STATES 

of activities. One is immediately struck by the fact that 
service in Congress does not seem to open the doors of 
the presidency. If there is any stepping-stone to the 
presidency which has been trodden with any regularity, 
it is that of the governorship. That position gives an 
opportunity for the kind of achievement which creates 
a strong popular appreciation of capacity for the presi- 
dency: It has been true that, as Bryce has pointed out, 
our greatest men have not become Presidents. Calhoun, 
Clay, and Webster, the great political figures of their 
time, never attained the coveted prize. In more recent 
times the real leaders of opinion in the United States 
have not always occupied the White House. Avail- 
ability counts more with a party in search of a candi- 
date than other qualities. It consists in the first place in 
residence in certain large and doubtful states, of an absence 
of active enemies, of an unimpeachable private character, 
and if possible of a dash of mihtary record. In spite of 
everything, however, our Presidents average as well as 
the premiers of the great democratic nations of France 
and England. There is in the presidential office attrac- 
tiveness enough to inflame the dullest ambition. It is a 
prize worth having, and the contenders for it are normally 
men of the first order in our public life. That pubhc 
life has not always attracted the best genius of America is 
largely due to the marvelous opportunities offered in 
industry and commerce by the development of the virgin 
economic resources of the United States. 

SUGGESTIONS FOR FURTHER STUDY 

The most interesting and significant discussion of the subject of 
this chapter is contained in Bryce, chs. v, vii, Ixix, Ixx, Ixxi, Ixxii. 
Ray, pp. 145-17 1, contains an excellent account of the national 
convention, with ample bibliography. Beard, pp. 166-186, is 



THE CHOICE OF A PRESIDENT 241 

valuable. See also suggestions appended to Chapter VIII for refer- 
ences on the campaign. Johnston, Alexander, American Politics, 
gives a brief account of each presidential campaign, with the 
issues and results. See also Reed, pp. 230-240. 

For teachers : St an wood, E., ^ History of the Presidency and A 
History of the Presidency from iSgy to igog, gives a complete account 
of presidential elections from 1789 to 1909. Another book of great 
merit is Dougherty, J. H., The Electoral System. 

Topics : 

An interesting class exercise will be to have each student look up 
the biography of some President or the history of some presi- 
dential election. 



CHAPTER XX 
THE POWERS OF THE PRESIDENT 

The chief of The framers of the Constitution discussed at great 
the state length whether the executive power should be intrusted 
to one man, two men, or a board. Happily they fol- 
lowed English and colonial precedent in giving it to one 
man, the President. He is, like the English king, the 
visible embodiment of the state for international purposes. 
To him are accredited the ambassadors or ministers of 
foreign countries. He appoints, in turn, our diplomatic 
representatives abroad. He conducts through them our 
foreign relations, and, with the advice and consent of the 
Senate, makes treaties with foreign nations. Again, 
like the English king, he is commander in chief of the army 
and navy. He has, too, the power of pardon and of 
proclaiming holidays, days of thanksgiving, or of fasting 
and prayer. While he does not maintain a ''court," as 
does his royal prototype, he is expected to entertain with 
considerable lavishness and from time to time to receive 
the public. He is expected, as the representative of the 
nation, to participate in great celebrations. If there is 
a golden shovel to be wielded in breaking ground for 
some great enterprise, the President is selected to do it. 
If there is a button to be pressed to start some great 
event, the President is begged to officiate. The Presi- 
dent is not surrounded by the formal etiquette which 
hedges in the crowned heads of Europe, nor does he appear 
in public with the same state and ceremony. His high 
ofhce, however, brings him the sincere respect of every 
American citizen, whatever his party. No king or em- 

242 



THE POWERS OF THE PRESIDENT 243 

peror will be more heartily supported by his whole people 
in time of national danger than our simple fellow-citizen 
whom we have elevated to the place of President. 

The first Congress fixed the salary of the President at Compensa- 
$25,000, — a princely sum for those days. It remained *^°^ 
at this figure until 1871, when it was increased to $50,000^ 
Beginning with the presidency of Mr. Taft, it became 
$75,000. This salary cannot be increased or diminished 
during the term for which a President has been elected. 
The President is provided with a mansion, — the White 
House, — which has recently been enlarged and made 
adequate for the residence of our chief magistrate. For 
the maintenance of the White House Congress appro- 
priates about $135,000. The President also has an al- 
lowance of $25,000 for traveling expenses and a contingent 
fund of $25,000. If he prefers to travel by sea, a naval 
vessel or revenue cutter is at his service. Few Presi- 
dents have saved money while in office. Most of them 
leave the White House poorer than when they entered it.^ 

The executive power of the President is very similar The execu- 
to that of the colonial governor, who was himself a sort tive power 
of mmiature portrait of the English king. It is largely President 
a matter of the power of appointment and removal. The 
President appoints, with the advice and consent of the 
Senate, practically all officers of the United States, in- 
cluding judges and officers of the diplomatic and consular 
services, except the minor officers whose appointment 
Congress has vested in the heads of departments. Over 
all officers whom he appoints, except judges, the Presi- 
dent has an absolute power of removal. Over those 
appointed by the heads of departments the latter hold a 

1 The President of France, who is the only officer in the world to whom 
in this respect our President may be compared, receives (besides the Elysee 
Palace as a residence), for salary and expenses, $240,000 per year. 



244 GOVERNMENT OF THE UNITED STATES 

similar power. This means that the President may 
direct the smallest detail of administration so long as he 
keeps within the limits of the law. Even where Congress 
has directly conferred certain powers or duties on a par- 
ticular ofificer, as in the case of the Secretary of the Treas- 
ury, the method of their exercise or performance is within 
the control of the President. In such a case, while the 
President cannot compel a particular secretary to act as 
he directs, he may remove him if he does not. Andrew 
Jackson appointed and removed two Secretaries of the 
Treasury before he got one who would withdraw the de- 
posits from the United States Bank. He finally, however, 
had his way. The President also draws great power 
from the duty of ''seeing that the laws are faithfully 
executed," sometimes invading thereby the usual sphere 
of state action. It was under this power that Lincoln 
proceeded to subdue resistance in the Southern states, 
and that Cleveland employed federal troops against 
Chicago strikers who interfered with the passage of the 
United States mails. 
The Cabinet No provision was made in the Constitution for a Cabi- 
net. So far as any official advisory body was provided 
for the President, it was the Senate.^ The first Congress 
created three heads of departments — the Secretaries of 
State, Treasury, and War — and an Attorney-general, 
making their tenure at the pleasure of the President. 
Washington began the practice of consulting these ofiicers 

^ Some writers find in the words, "he may require the opinion in writing 
of the principal ofl&cer in each of the executive departments upon any 
subject relating to the duties of their respective offices," a basis for the 
Cabinet. The real intention of this clause was to prevent the heads of 
departments from becoming independent of the President. This was not 
an unnatural precaution in view of the fact that the Constitution did not 
provide the tenure of office of the executive officers, leaving this matter to 
Congress, which might have made it life, thus making them independent 
of the President. 



^ OJ <u 




? .^^^ 

3 Q 4^ > ° 

'^ ti ^. '^ H 
f-* ^ ^ ^ cA 

(U & g o H 
■^^ o^ ^ 



THE POWERS OF THE PRESIDENT 245 

at first singly, but later in meetings. Every succeeding 
President has kept up the practice, the Cabinet meeting 
on a day fixed by the President.^ 

• The President deals directly with the head of each 
department on matters affecting that department, and 
only matters of large concern are referred to the Cabinet 
as a whole. The President usually consults the Cabinet 
about the more important questions of legislation and 
executive poHcy, but he is under no obligation to do so. 
Lincoln, for example, said nothing about the Emancipa- 
tion Proclamation to his Cabinet except to read it to them 
and say he had determined to issue it. The importance 
of the Cabinet depends on the relative weight of the per- 
sonality of its members and of the President. The 
Cabinet meets in secret, and it keeps no records. Its 
votes are of no consequence, the President being free to 
follow its advice or not. It has no relations with Con- 
gress, although its individual members may urge before 
the committees of that body their recommendations con- 
cerning legislation affecting their departments. 

For the control of the executive, we have seen that the Limitations 
President is furnished by the Constitution with ample den?sexec-' 
power. This power, however, must always be exercised utive power 
within the limits of the law, the courts having authority 
to restrain his agents or appointees from any act which 
is not warranted by law. The power of Congress over 

^ The following officers have been from time to time added to the Cabinet : 
Secretary of the Navy, 1798; Postmaster-general, 1829; Secretary of the 
Interior, 1849; Secretary of Agriculture, 1889; Secretary of Commerce and 
Labor, 1903 (divided into two secretaryships, 1913) ; Secretary of Com- 
merce, 1913 ; Secretary of Labor, 1913- There are thus ten Cabinet officers. 
Though all Presidents have consulted their Cabinets and the institution 
was the subject of frequent reference in the press and conversation, it was 
vmknown to the law until 1907, when an act provided that "the compensa- 
tion of . , . the heads of executive departments who are members of the 
President's Cabinet shall be at the rate of twelve thousand dollars per 
annum." 



246 GOVERNMENT OF THE UNITED STATES 



Senatorial 
courtesy 



President 
and Senate 
in foreign 
affairs 



appropriations may be very effectively used to check- 
mate the President, as when Congress refused the ap- 
propriations necessary to carry on the Conservation 
Commission created by President Roosevelt and forbade 
the employees of other departments to assist that com- 
mission. The most constantly active limitation on the 
President's executive authority is the power of the Senate 
to refuse its assent to his appointments. 

In acting on appointments, the Senate has adopted a 
custom known as "senatorial courtesy," which decrees 
that the Senate will not confirm any appointment unless 
it is approved by the senator or senators from the ap- 
pointee's state who happen to be of the President's polit- 
ical party. If there is no senator from the state in 
question who belongs to the President's party, the rule 
does not apply. The effect of senatorial courtesy is, if 
carried to its limit, to divide the President's patronage 
among the senators of his party. This may be destructive 
of his responsibility to the people for the character of ap- 
pointments. On the other hand, it is inevitable that, 
because of the size of the country, the President should 
consult somebody acquainted with a state and its people in 
making appointments from among their number. Where 
senatorial courtesy is carried only to the extent of per- 
mitting a senator to veto a bad appointment from his 
state, it is not objectionable. Just what it amounts to 
at a particular time depends on the strength of the Presi- 
dent and his general control over the legislature. 

The President is charged with the duty of conducting 
the foreign relations of the country. He must, however, 
secure the consent of the Senate to treaties which he 
negotiates. The Foreign Affairs committee of that body is 
very active in matters relating to treaties, and it is not 
uncommon for the Senate, on its recommendation, to 



THE POWERS OF THE PRESIDENT 247 

refuse to ratify treaties which have been negotiated by the 
President. President Roosevelt, however, on one such 
occasion, put the terms of a treaty with San Domingo into 
force by simple agreement with the other contracting 
party, and, as no legislation was necessary to consummate 
it, got along very well. Since the initiative in all foreign 
affairs belongs to the President, he has an enormous 
advantage over the Senate. He can create situations 
which leave no choice as to the means of meeting them, 
and thus tie the hands of that body. The most striking 
piece of American diplomacy in recent years was the 
acquisition of the Canal Zone by President Roosevelt. 
To use his own language, he "took it," and the methods 
by which he did it were entirely beyond the control of 
the Senate. On the whole, the participation of the 
Senate in treaty making, by preventing secret alliances 
which might involve the United States in war, has had a 
very salutary effect. Diplomats chafe under the limita- 
tions it places on their activities. If, however, such a sys- 
tem had prevailed in European countries, the war of 19 14 
might have been averted. 

We have already seen how, with the decline of the state The Presi- 
legislatures, the governor has gained in power as the one <ient as the 
direct representative of all the people. A similar evolu- representa- 
tion has taken place in the office of the President. As ^^J® j^*^® 
long as the conception of the reactionary George III 
as a ruthless tyrant remained a vivid impression in the 
American mind. Congress was the department of the 
federal government to which public confidence and affec- 
tion particularly attached. With the disappearance 
from active life of those who had taken part in the Revol- 
utionary struggle, a change began to appear. Andrew 
Jackson, as the successful candidate of the new democracy, 
claimed in a pecuKar degree to represent the people against 



248 GOVERNMENT OF THE UNITED STATES 

the "interests" which he saw controlling Congress. 
From that time on the representative character of the 
presidency has vastly developed. Of course, weak 
Presidents and strong Congresses have helped to retard 
the movement. Even such keen observers as Bryce 
have been deceived by such passing phenomena into the 
behef that the President of the United States is, except 
in time of war, comparatively powerless. The war 
power of a President — all writers are agreed — goes 
almost to the point of dictatorship. As a matter of 
fact, even in time of peace it is to the President that 
the people now look for the direction of the ship of 
state. 
The weak- Congress has, by its failure to become genuinely repre- 
ness of Con- gentative of the whole people, contributed to the result. 

gress r- r 7 

The average congressman, because of the attitude of the 
average voter of the average congressional district, is 
primarily interested in getting local appropriations for his 
district. New post ofRces, customhouses, harbor im- 
provements, and other things which the government has 
to distribute, claim most of his attention. If he gets 
these things, or, to use the current political phrase, " gets 
his hands deep enough into the pork barrel," it makes little 
difference to his constituents what his vote may be on 
national questions. He therefore too often uses his vote 
to secure the support of the leaders of Congress for his 
local measures. A body made up of local representatives 
whose chief motive is to retrieve as large appropriations 
as possible for their constituents, can never be genuinely 
representative of the nation. Then, as we shall soon see, 
the organization of Congress has been such as to make it 
almost impossible for the people to hold its members 
responsible for the carrying out of any constructive 
policy. The President, therefore, has become the only 



THE POWERS OF THE PRESIDENT 249 

real representative of the whole people, its only hope of 

controlling the government in its own interests. In 

consequence, it has come to demand that the President 

take the lead not only in matters properly pertaining to 

the executive department of the government, but also in 

matters of legislation as well. 

The President has the duty of communicating to Con- The Presi- 

gress information concerning the state of the nation. He ^^^^'^ 
° ° message 

usually includes in this "message" a number of recom- 
mendations for legislative action by Congress. He also 
makes from time to time such other recommendations as 
he desires. Of recent years the bulk of the annual mes- 
sage has become enormous. President Wilson at the 
beginning of his administration adopted the wise policy 
of frequent brief messages, each containing only a few 
matters of recommendation. Washington and Adams 
delivered their messages orally to both houses of Congress. 
Jefferson preferred to send his messages in writing. 
Every other President used written messages until 
Woodrow Wilson reverted to the original practice. His 
messages have been read to both houses assembled in the 
hall of the House of Representatives. There can be no 
doubt that the spoken message gets keener attention and 
that the effectiveness of the argument is greater because 
of the power of the President's personality. 

More important than his power of recommending meas- The Presi- 
ures is his power of veto. It has been rare, save during ^^* s ve o 
the quarrel between Andrew Johnson and Congress, that 
a bill has received the two-thirds majority necessary to 
pass it over his veto. The Presidents before Jackson 
used it only to prevent the passage of what they regarded as 
unconstitutional legislation. Jackson vetoed bills freely, 
because he objected to their policy. The veto remained, 
however, undeveloped as a regular instrument of govern- 



250 GOVERNMENT OF THE UNITED STATES 

ment until the administration of Grover Cleveland. He 
vetoed a great number of bills, and it is now clear that if 
Congress passes any measure distasteful to the President, 
he will veto it. Congress has sometimes been able to 
evade the President's veto by tacking objectionable pro- 
visions as ''riders" upon essential bills, especially ap- 
propriation bills. Since the President must sign or 
reject bills as a whole, he thereby is obliged to acquiesce 
in legislation of which he does not approve. 
The Presi- For the control of Congress, the Constitution has pro- 

dent and vided the President only with the power of recommending 
measures to its consideration, the power of convening 
them in extra session, and the power of veto. The power 
of recommending measures to Congress is by no means 
tantamount to securing their adoption. There is nothing 
to compel Congress to adopt them. There is no such ef- 
fective discipline behind the President's program as there 
is behind the program which the EngHsh Cabinet an- 
nounces at the beginning of each session of Parliament. 
This is largely because defeating the ministry means a 
change of the party in power, while defeating the Presi- 
dent involves no such change. The principal element of 
power in being able thus publicly to call the attention of 
Congress to the things which he proposes for their ap- 
proval, is the publicity given his messages. It is a small 
and benighted paper which does not publish the Presi- 
dent's message in full. It is sent in advance to every 
paper in the country, subject to release on the day on 
which it will be actually delivered before Congress. No 
other utterances in America are anything like so widely 
distributed. The message becomes, therefore, a wonderful 
means of giving direction to public opinion. It is really 
addressed to the people, and it is through them that its 
effect on Congress is exerted. 



The Presidents Engagements 



Wednesday, January 12, 1916 



10:00 a.m. John H Fahey 

10:00 a.Q. Coimiiittee of the Pittsbuigh Chamber of 

Coronerce - to extend invitation. (Joseph 
F. Guffey) 

10:00 a.m. Senator Hoke Smith 

10:00 a.n. Rep. Tribble, of Georgia 

10:00 a.-m. Rep. Heflin, and membefs Alabama Delegation 

10:30 a.m. Rep. Fitzgerald 

10:45 a.m. Senators Beckhwri and James 

'''"''^"'^':00 a.m. The Speaker 



' Li: 30 a.m. Rep Eagle, of Texas 

^ 11:45 a.n. Senator Lewis 

12:00 noon Hi-. Stevens of Fedei-al Trade Cornmissior. 

12:15 p.m. Govei-ncr Major, of Missouri 

12:30 p.ra. Judge Wcstcott, New Jersey 



5:30 p.m. THE WHITE HOUSE: 

Representative Padgett 

Belasco Theatre 



A busy man must be systematic to get through a day's work. The President 
has his engagements for each day listed and checks them off as they are met. 



THE POWERS OF THE PRESIDENT 251 

The power of convening Congress in extra session not 
only provides for the emergencies which arise in a nation's 
Hfe, but gives a determined President a means by which 
he can prevent Congress from dodging the passage of 
legislation in which he is interested. No better example 
of this has ever been afforded than the extra session 
called by President Wilson immediately after he came into 
office and continued under his influence until the begin- 
ning of the regular session of 19 13. Congress was called 
together to deal with the tariff and currency questions, to 
the reform of which the President had pledged himself and 
his party, and he insisted on the Democratic majority in 
Congress living up to that pledge. It would have been 
futile for Congress to adjourn, — as many of its members 
undoubtedly desired, — for the President would have 
called them back without a moment's delay. 

The veto has much more force than simply as a nega- The " big 
tive check on legislation after it has passed both houses. ^***^^" 
The fear that the President will use his veto on their pet 
bills — whether this fear arises from a direct threat or 
not — is a very powerful influence in holding members 
in line for '' administration measures." That Presidents 
do manage to convey to members an impression that 
they will use the veto as a club on their enemies is cer- 
tain. It is one of the ways of using the "big stick." • 
Another is the use of patronage. Every member of 
Congress is eager for a share in the President's patronage. 
His influence with his local machine depends to a con- 
siderable extent on what he "can land for the boys." 
It is easy for the President to make use of the offices 
within his gift as a weapon against those who balk at his 
program. Still another way of wielding the "big stick " is 
to appeal, or be ready to appeal, from the member of 
Congress to the people of his district. The President is 



252 GOVERNMENT OF THE UNITED STATES 

such a big personality and he has, so much more than any 
other man, the ear of the people, that he can make things 
most uncomfortable for the congressman whom he puts on 
his blacklist. Many people object to the use of the so- 
called ''big stick." They say that it is unconstitutional 
and immoral for the President to force members by threats 
and promises to vote for measures which they would not 
on their own judgment approve. The President, never- 
theless, is expected to control Congress, and unless he 
does so he cannot be in the eyes of the people a successful 
President. President Taft, who early in his term took 
the ground that it was the business of Congress to legis- 
late, was charged with evading his duty. The President, 
however, has no constitutional way of controlling legisla- 
tion. His secretaries cannot appear on the floor of either 
house to convince it of the merits of his program. He can- 
not count on the unhesitating party loyalty of his followers 
in Congress. Repeated experiments have proved that 
Congress cares little for the pledges of the party platform 
or for any kind of preelection promises. The only way 
in which the President can carry out his policy is by the 
leadership of public opinion, to which Congress is some- 
what responsive, and the application of the "big stick." 
The people demand the results. They are not nicely 
. critical about the means employed. 
Defects of To sum it up, it may be said that strong Presidents get 

the present ^^^t they want to some degree. Weak Presidents get 
almost nothing. In neither event is there any likelihood 
of a really consistent policy being worked out. The Presi- 
dent's means of control are too irregular. By their very 
nature they are compelled to be reserved for the few 
measures which the President deems most essential. 
Even the most docile Congress cannot be driven all the 
time without risk of rebellion. The vitally important 



THE POWERS OF THE PRESIDENT 253 

matter of appropriations, in which we have seen that the 
members of Congress and their constituents are most 
interested, have to be left to the almost undirected will 
of the legislature (see Chapter XLI). When, as not in- 
frequently happens, one or both houses are opposed to 
the President politically, his power to control Congress 
by any method disappears and all chance of a coherent 
policy is lost. On the whole, our system of a President in- 
dependent of Congress has made impossible the harmony 
between the legislative and executive departments which 
exists in countries which have adopted the English system 
of a responsible ministry. 

No fundamental change in our arrangements is possible A partial 
at the present time. It would, however, help matters ^®"^® ^ 
somewhat if the members of the President's Cabinet were 
given the right to sit and speak in either house of Congress. 
There would be less occasion for the use of extra-legal 
methods if measures could be directly advocated by 
representatives of the President on the floor. There 
would be a greater chance of the departments receiving 
fair treatment from Congress in appropriations and other 
legislation than at present. No amendments to the 
Constitution would be necessary for this change. It 
could be effected by a simple alteration of the rules of • 
the two houses. 

SUGGESTIONS FOR FURTHER STUDY 

Bryce, chs. vi, XX, and xxi, deserves first mention. Beard, pp. 
187-214, and Readings, pp. 176-196, will be useful. Haskin, F. J., 
The American Government, gives a picturesque account of the mul- 
titudinous activities of the President. See also Reed, pp. 240-246. 

For a more extended discussion see Finley and Sanderson, 
American Executive and Executive Methods. Ex-President Cleveland 
gives an extraordinarily illuminating view of the power of the office 
in Presidential Problems, pp. 3-1 17. Two volumes composed of lee- 



254 GOVERNMENT OF THE UNITED STATES 

tures by ex-President Taft, Our Chief Magistrate and His Powers and 
The Presidency : Its Duties, Its Powers, Its Opportunities^ and Its Lim- 
itations, contain the latest and perhaps the clearest treatment of 
the whole subject. 

Teachers will find valuable Mason, E. C, The Veto Power, Harvard 
Historical Monographs, No. i ; Wilson, Woodrow, Congressional 
Government (on the relation of the President to Congress) ; Learned, 
H. B., The Presidents Cabinet (contains an elaborate bibliography). 

Topics : 

The Cabinet. 
The Veto. 

"Senatorial Courtesy." 
The Treaty-making Power. 
The Power of the President over Congress. 

The History of the Cleveland, McKinley, Roosevelt, Taft, and 
Wilson Administrations. 



CHAPTER XXI 

THE CONGRESS OF THE UNITED STATES 

The framers of the Constitution debated long and The form of 
earnestly over the form of the legislature. They followed J^^^^g^*^' 
colonial and EngHsh precedents in making it bicameral. 
The fears of the small states that they would be swamped 
by their larger fellows led them to demand equahty of 
representation, which, as you will remember, they had 
enjoyed in the Congress of the Confederation. To this 
demand the large states yielded sufficiently to concede 
equality of representation in the upper house or Senate. 
That fear of the consequences of the direct control of the 
government by the people to which we have already 
referred resulted in giving the election of senators, not to 
the people, but to the state legislatures. The Senate, 
therefore, became in a peculiar sense the representative 
of the state governments. The senatorial term, which 
was fixed at six years, was another product of the reac- 
tionary spirit of the convention. To make the Senate a 
more secure bulwark against the passing opinions of the 
people, it was provided that one third of its members 
should retire every second year. Thus even the unani- 
mous sentiment of all the state legislatures could not 
change more than one third of its members at once. The 
members of the lower house, or House of Representatives, 
were to be apportioned among the several states accord- 
ing to population. They were to be elected for the com- 
paratively short term of two years by those persons 
qualified to vote for members of the lower house of the 
state legislature^ The House of Representatives, there- 

^S5 



256 GOVERNMENT OF THE UNITED STATES 



Powers of 
the two 
houses 



fore, seems to have been especially designed to represent 
the people. The Seventeenth Amendment, however, 
providing for the election of senators by popular vote, has 
put it more on an equahty with the House in this respect. 
The fact, however, that 81,875 people in Nevada choose as 
many senators as 9,113,614 in New York, and that forty- 
eight senators are elected by sixteen and one half miUions 
and forty-eight by the remaining seventy-five millions of 
our population, still leaves the Senate a very imperfect 
representative of the people. 

Any bill, except those raising revenue, may originate 
in either house. By custom the big appropriation bills 
originate in the House of Representatives. The Senate, 
however, uses so freely its power to amend revenue and 
appropriation bills and is so successful in forcing the 
House of Representatives to agree to its amendments, 
that it may be said to exercise quite as much influence 
in matters of finance as the lower house. The only 
other special privilege of the House of Representa- 
tives is that of beginning impeachment proceedings 
against the President or other officers of the United 
States. 

The Senate has the exclusive right to try impeachments. 
It also possesses the right to advise and consent to treaties 
and appointments made by the President. Those powers 
were given to it because similar powers of advising the 
executive belonged to the upper houses of the colonial 
legislatures. It was probably the intention of the framers 
of the Constitution that the Senate talk these matters 
over with the President and decide them with him. 
Washington on more than one occasion came into the 
Senate in person to discuss his proposals. The Senate, 
however, clearly showed that they regarded these visits 
as an intrusion, and after a few efforts Washington gave 



<^AMz> <ieAA<xXt/ \M.e^ux^^ (XAAX) -uxj! '3^ A'tUtccvtAvtC' jYlcdi^KxA^-^ 



Last paragraphs and signatures of the Hay-Pauncefote Treaty of 1901, which 
abrogated the Clayton-Bulwer Treaty of 1850 (except Clause 8) and left the 
United States free to build the Panama Canal without the participation of Great 
Britain. 




THE CONGRESS OF THE UNITED STATES 257 

up the attempt really to consult with it. No subsequent 
President has ever gone to the Senate on such an errand. 
Of course, rapid growth in the number of senators soon 
destroyed any possibiHty of its being an actual council 
to the President. The President now communicates to 
the Senate in writing his finished acts, which they accept 
or reject in "executive" or secret session.^ In the case 
of appointments, he consults with the senators from the 
state from which the appointee comes. The President 
is always in close touch with the Senate Committee on 
Foreign Relations, and thus a few senators are consulted 
in advance with regard to treaties. In important cases, 
other senators may be consulted in advance of their actual 
submission to the Senate. The Senate is sometimes said 
to "amend treaties." This, strictly speaking, it cannot 
do. In refusing to ratify a treaty, the Senate may indi- 
cate what changes in its text it considers desirable. Such 
changes may or may not become the basis of future 
negotiations between the President and the representatives 
of the foreign country in question. 

Contrary to the general experience of other countries, Relative 
the so-called popular house has not reduced the upper position of 
to the second place. The Senate has had the advantage houses 
of the House of Representatives in its smaller numbers, 
enabling it to transact business more efficiently. The 
long term which makes for experience is another factor 
in its superiority. The fact that two thirds of its members 
are always old members gives it a solidarity and sense of 
its own individuahty which is lacking in the lower house. 
Further, the senators themselves are not only on the 
average abler and more experienced than the represen- 
tatives, but it not infrequently happens that a senator 

1 The newspaper correspondents usually have information about these 
secret sessions. Ninety-six men rarely keep a secret. 



258 GOVERNMENT OF THE UNITED STATES 



The growth 
of the two 
houses 



is the political boss of some at least of the representatives 
from his state. The share of the Senate in executive 
functions gives to the senators individually and collectively 
a source of influence entirely denied to the House of Repre- 
sentatives. As a result, the Senate plays a larger part in 
leading the public opinion of the nation than does the 
House. 

In the first session of Congress there were but twenty- 
four senators, — not too many for an advisory council 
to the President. The number grew rapidly with the 
admission of new states. From 1820 to i860 these ad- 
missions were carefully timed to preserve the balance 
between the free and slave states. In i860 there were 
sixty-six senators. There are now ninety-six, and as 
there are no more territories out of which states may be 
made, it will probably remain at this point, unless — ■ 
which is very unlikely — some state is divided. 

The Constitution of the United States provides that 
members of the House of Representatives shall be ap- 
portioned among the several states in accordance with 
their population, as determined by each decennial census. 
There may not be more than one representative for each 
30,000 population, and each state is entitled to at least 
one, irrespective of its population. The Constitution 
arbitrarily fixed the numbers of the first House at sixty- 
five. Each reapportionment has seen an increase in the 
ratio of population to representatives, until it is now 
212,407. These changes of ratio have never, except in 
1840, been great enough to prevent an increase in the 
size of the House. Whenever the task of reapportion- 
ment comes up, Congress has to choose between actually 
taking away representatives from some of the slow-growing 
states and increasing the total number of members. It has 
preferred the latter alternative. According to the appor- 



THE CONGRESS OF THE UNITED STATES 259 

tionment of 19 10 there are 435 members of the House of 
Representatives. 

The increase in the size of the House of Representatives Effects of 
has been attended by considerable loss in its efficiency as *^^ growth 
a legislative body. The mere numbers of the House have 
made it necessary to adopt rules for the hmitation of 
debate, which has made it not much more than a panel 
for the selection of committees and a huge voting machine. 
Until very recently it was thought necessary to provide 
each member not only with a chair, but with a desk. 
These desks enabled the members to write letters, and 
indeed do almost everything except attend to the pro- 
ceedings of the House. The constant rusthng of papers 
and slamming of hds, clapping of hands to arrest the at- 
tention of the page boys, added to the magnificent dis- 
tances of the hall, made it very difficult for the ordinary 
member to be heard. Only those possessed of good lungs 
and exceptional oratorical gifts could claim the genuine 
attention of the House. Others were unheard except by 
such interested members as might gather about their 
desks. Even in the case of speakers of great force and 
ability it is difficult to engage in serious and effective dis- 
cussion of a measure when shouting at the top of one's 
lungs. After years of agitation, the House finally provided 
for removing the desks and reducing the seat area. 
This was made easy by the completion of a great office 
building in which each member has a room in which to 
conduct his correspondence and other business. The 
members of the House now sit on benches arranged in 
concentric half-circles much hke the seats in a theater. 
Only those are present who are disposed to Hsten to what 
is going forward. The new arrangement is much to be 
preferred to the old. The great galleries afford room for 
twenty-five hundred persons, and on the occasion of an 



26o GOVERNMENT OF THE UNITED STATES 

important debate are crowded with spectators.^ The 
Senate chamber is much smaller than the hall of the 
House of Representatives. Each member has a desk, 
and deep galleries and lobbies surround the room. De- 
bate in the Senate is naturally much more extended 
and effective than in the House. There is less noise and 
better attention. 
Compensa- The Constitution provides that senators and repre- 

tionof repre- gentatives shall receive a compensation for their services 

sentatives ^ ^ ^ 

and senators which shall be determined by law. The first Congress 

debated at great length over the amount of compensation, 

and finally fixed it at six dollars a day. It is interesting 

to recall that it was severely criticized by the contemporary 

press for fixing the rate so high. This per diem was 

gradually increased until 1856, when a salary of $3000 

a year was provided. It was raised to $5000 in 1865, and 

to $7500 in 1907. In addition to his salary, each senator 

and representative is entitled to a traveling allowance or 

mileage of twenty cents a mile. This amounts, in the 

case of a representative from the Pacific Coast, to about 

$2500 a term. Representatives are allowed $1500 each 

for clerk hire. The more important committees have 

salaried clerks who act as secretaries for their chairmen. 

In these and other cases, the whole or a large part of the 

$1500 is practically added to the salary of the member. 

Senators, except committee chairmen, have $1800 for 

clerk hire. There is also a small allowance for stationery. 

Members of both houses have the right to "frank," or 

send free under their signatures, any mail they may desire. 

The members of both houses going to or coming from a 

session are privileged from arrest, "except for treason, 

felony, or breach of the peace." The effect of this pro- 

1 The position of the Speaker and clerks and of the lobbies are as we 
have already described them for the halls of our state legislatures. 



THE CONGRESS OF THE UNITED STATES 261 

vision is to protect them from arrest in any civil case or Privileges of 
for a simple misdemeanor. It is a relic of ancient times rewesenS^ 
,in England, and is of little importance. The Constitu- tives 
tion also declares that "for any speech or debate in either 
house, they shall not be questioned in any other place." 
This secures absolute freedom of speech in the House and 
Senate, so far as any outside authority is concerned. If 
a member indulges in remarks that are indecent or unduly 
defamatory of his opponents, he may be disciplined by 
the body to which he belongs. With the ''concurrence 
of two thirds," a member may even be expelled. No 
senator or representative may during his term be ap- 
pointed to any civil office which has been created, or the 
salary of which has been increased, during that period.^ 
No person can be at the same time an executive officer 
of the United States and a member of Congress. The 
intention of both the above limitations was to prevent 
the legislature from being corrupted by executive appoint- 
ments, although experience has hardly warranted the 
fears of the framers in this particular. 

The Constitution prescribes that Congress shall meet Sessions 
annually on the first Monday in December, unless a dif- 
ferent day is appointed by law. Congress has never 
exercised its privilege of changing the time of meeting. 
Since the terms of representatives and senators begin 
with the 4th of March following their election, unless 
called in extra session by the President a house does not 
meet for its first session until thirteen months after its 



1 One of the best illustrations of the working of this rule is to be found 
in the circumstances surrounding the appointment of Mr. Knox as Secretary 
of State by President Taft. Knox was a member of the Senate in 1907, 
when the salaries of all Cabinet officers were raised to $12,000 per year. 
He was still serving part of the same term when President-elect Taft selected 
him for his future Secretary of State. Before he could accept, however, it 
was necessary for Congress to reduce the salary to the figure from which it 
had been raised in 1907. 



262 GOVERNMENT OF THE UNITED STATES 

election. The legislative period for which the house is 
elected is called a "Congress," and the journals and de- 
bates of the two houses, and other documents published 
by their authority, bear the number of the Congress and 
the number of the session to which they refer, — as " 45th 
Congress, First Session," or ''62d Congress, Third Ses- 
sion." The first session of each Congress is sometimes 
spoken of as the ''long session," and the second, extending 
only from December to March, as the ''short session." 
The President may convene Congress in extra session, 
and this practice is apparently becoming more common. 
The President does not have the power usually possessed 
by the chief of state in European countries of dissolving 
the houses, or even adjourning them, except when they 
disagree as to the time of adjournment. Neither house 
may adjourn for more than three days, nor to a different 
place, without the consent of the other. Bills introduced 
at one session of a "Congress," but not passed, are taken 
up at the next session of the same "Congress" where they 
were left at the end of the last. All bills die at the end 
of a "Congress." 
Record of The Constitution requires each house to "keep a journal 

proceedings ^£ -^^ proceedings, and from time to time pubhsh the same, 
excepting such parts as may, in their judgment, require 
secrecy." The journal is simply the record of bills and 
resolutions submitted, motions made and action taken, 
with, in certain cases, the names of those voting "aye" 
and "no." It has long been the custom to publish it all, 
even that part relating to the so-called "executive" sessions 
in which appointments and treaties are discussed by the 
Senate. In addition to their journals, both houses publish 
their debates in full in the Congressional Record. The 
Record appears daily while Congress is in session and 
contains not only what is actually said in Congress, but 



THE CONGRESS OF THE UNITED STATES 263 

other matter which either house has given leave to print. 
The House of Representatives is especially liberal in 
granting this privilege. Many a speech franked to the 
"folks at home" by an aspiring member of the lower house 
was never actually delivered. The member simply said 
a few words and then asked leave to extend his remarks 
in the Record. Sometimes foolish rnembers even insert 
phrases like "[applause]" or "[loud applause]" in these 
printed speeches. The dignity of senators does not allow 
them to "extend" their remarks, the freedom of debate 
making such a practice entirely unnecessary. In con- 
nection with national campaigns millions of portions of 
the Record are franked to voters. 

The second quarter of the nineteenth century was the Personnel of 
golden age of the Senate, when it was adorned by such *^® Senate 
illustrious personalities as Calhoun, Clay, and Webster. 
No legislative assembly in the history of the world has 
ever surpassed the United States Senate from 1830 to 
1855. Since the Civil War it has gradually declined and 
now contains few men of the first magnitude, but it still 
continues to be a body of great efficiency and power. It 
has become, in a sense, a rich man's chamber. Many 
men of great wealth consider a term of service in the 
Senate a fitting climax to their careers and have managed 
to secure an election from a state legislature. Still more 
of its members are lawyers, — not the general practi- 
tioners of days gone by, like Clay and Webster, but more 
especially corporation attorneys, some of them of great 
eminence in their profession. A few senators are simply 
state bosses who have used their power to get into the 
Senate. These men are — to use Bryce's phrase — • 
"rich because they are senators." Taken as a whole, 
the senators represent the best our pubHc life calls forth. 
Their fault is a bias toward wealth. Their great merit 



264 GOVERNMENT OF THE UNITED STATES 

is a high average of abihty and efficiency in dealing with 
legislation. What will be the effect of the Seventeenth 
Amendment on the personnel of the Senate remains to 
be determined. It probably will not be very marked, as 
a majority of the states had before its passage, by a variety 
of legal subterfuges, provided for the popular election of 
United States senators. 
Organiza- The Senate is presided over by the Vice-President of 

tion of the ^j^g United States. He is not a member of the Senate and 
Senate 

plays a very small part in its internal politics. He may 

vote only in case of a tie. In the absence of the Vice- 
President the Senate is presided over by a president pro 
tempore, elected by the Senate from among its own num- 
ber. It is usual for the Vice-President early in each 
"Congress" to absent himself for a few hours to allow the 
choice of the president pro tempore, who holds the position 
for that session. He may vote like any other member. 
The presiding officer of the Senate must recognize the 
first person who rises, and all points of order are decided 
by the Senate itself. The committees of the Senate, to 
which all bills are referred and through which most of its 
work is done, are chosen by ballot. As a matter of prac- 
tice, the majority party in the Senate is entitled to a 
majority on each committee. Agreement having been 
reached as to the number of majority and minority mem- 
bers on each committee, the actual membership of each 
is determined by the caucus of each party. In the 
sixty-third Congress there were seventy-five of these 
committees. Every senator is a meniber of several of 
them, and each of the older members is chairman of 
some committee. 

The United States Senate is the only important legis- 
lative body in the world in which there are no limitations 
on the freedom of debate. There is no such thing as the 




The national Senate chamber at Washington. 




President Wilson reading his message to the Sixty-fourth Congress, assembled 
in the Hall of Representatives, December 7, 191 5, 



THE CONGRESS OF THE UNITED STATES 265 

"previous question" in the Senate. A senator once on Debate in 

the floor can speak as long as he desires. He may yield *^® Senate 

the floor to another senator, and when this speaker is 

through the right to it goes back to the original possessor. 

This privilege has been used by leather-lunged senators 

to talk measures to death at the close of a session. At 

any time, four or five determined senators may so long 

delay the vote on a bill as to force the majority at least 

to compromise. These efforts of the minority to block 

the wheels of legislation are known as "filibusters." The 

most famous Senate filibuster was that against Senator 

Lodge's "Force Bill," which the Democrats defeated by 

this means. In spite of occasional inconvenience, the 

Senate cherishes its freedom of debate. The body is so 

small and the personal relations of senators so close as to 

prevent abuse of the privilege except in rare instances. 

The Constitution of the United States did not say Election of 

whether representatives should be elected by districts or representa- 

^ -' tives 

at large, and it was not until 1842 that Congress provided 

that they should be elected by districts. Even now, 
where, following a congressional reapportionment which 
has increased its representation, a state has not had time 
to rearrange its districts, one or more congressmen may 
be elected at large. North and South Dakota are specifi- 
cally allowed to elect at large. The process of redistrict- 
ing, which occurs at least once in ten years, is often the 
occasion of a "gerrymander." Happily a RepubHcan 
gerrymander in one state usually sets off a Democratic 
gerrymander in another. More important even than 
the practice of district elections is the custom that a can- 
didate must reside in the district from which he hopes to 
be elected. It has helped to make the House a body of 
local representatives. It has kept many good men from 
becoming candidates. It is one of the little ironies of 



266 GOVERNMENT OF THE UNITED STATES 



Personnel of 
the House 
of Repre- 
sentatives 



American politics that some districts will be rich in con- 
gressional material, while in others there is none. It tends 
to reduce a member's chance of reelection. If the ac- 
cidents of politics turn his own district against him, no 
matter what the merit of his services there is no other 
constituency open to him. This custom has all the force 
of law and there does not seem to be any prospect of 
change. 

The members of the House of Representatives are, on 
the average, of higher intelligence and training than state 
legislators, but lower than United States senators. As a 
body they rank somewhat higher than the membership 
of the lower houses of other countries. Few have at- 
tained genuine eminence in any walk, of life. Particularly 
noticeable by their absence are the men who in England 
or France would be in the cabinet or governing executive 
body. The majority of the representatives are practical, 
hard-headed men of good native capacity who have 
worked their way up in a strenuous world. About haH of 
them are lawyers, — usually not of the first rank, — and a 
goodly number are manufacturers, merchants, and farm- 
ers. There is a sprinkling of journalists. Workingmen 
in the sense of artisans are rare. "Five representatives 
out of six," says Bryce, "are politicians, pure and 
simple." In other words, whatever their original occu- 
pation may have been, they have pretty well abandoned 
it for politics. Usually more than one half have graduated 
from a university or college. The leaders of the House 
are in general the men who have served in it the longest. 
The method of transacting business through committees 
puts a premium on adroitness in handling men and a 
knowledge of the procedure of the House, both subjects 
in which experience is the best teacher. The House has 
had leaders of the first order of political ability, like the 



THE CONGRESS OF THE UNITED STATES 267 

matchless Henry Clay, but they have been the exception, 
not the rule. It is, when all is said, a body of high average 
ability, led by men who excel in legislative experience 
rather than in eloquence, learning, or statesmanship. 

The House of Representatives has full power over its Organiza- 
own organization, electing a Speaker, clerk, sergeant- ^°^ *J® 
at-arms, etc. Each new House is called to order by the Representa- 
clerk of the previous House, who presides until the elec- *^^®® 
tion of a Speaker. Each party has previously nominated 
its candidate in caucus, and the nominal election in the 
House is usually a mere formality. Sometimes, however, 
when there are more than two parties, the choice of a 
Speaker is a matter of many weeks of bitter struggle. 
The House as a body nominally appoints all its committees. 
In practice, the caucus of the majority party selects the 
chairman and the majority of the members of the Com- 
mittee on Ways and Means, the caucus of the minority 
party selecting the remainder. When this selection has 
been ratified by vote of the House, the Committee on 
Ways and Means, or more accurately its chairman, selects 
the chairmen and members of the other committees, the 
House adding its formal approval. 

SUGGESTIONS FOR FURTHER STUDY 

No more pertinent and suggestive criticism of our national legis- 
lature is to be found than that of Bryce, chs. x-xix. See also Beard, 
pp. 231-252, and Readings, pp. 214-235. Reinsch, P. S., American 
Legislatures and Legislative Methods, has much good material for 
use in connection with this and the succeeding chapter. A copy of 
the Congressional Directory is indispensable for a study of the 
personnel of the two houses. The Congressional Record should be 
secured where possible, and samples of extracts from it and other 
documents should be obtained from your senator or representative. 

Teachers may likewise make use of Haynes, G. H., The Election of 
Senators, and Commons, John R., Proportional Representation (on 
the "gerrymander"). 



268 GOVERNMENT OF THE UNITED STATES 

Topics : 

The Biographies of Senators and Representatives. (The results 
can be tabulated so as to show the age, occupations, education, 
and previous political experience of each member.) 

The Franking Privilege. 

The Congressional Record. 

The House and Senate Chambers. 

The Election of Senators. 

"Gerrymanders." 



CHAPTER XXII 
THE MAKING OF A FEDERAL LAW 

We have already seen how laws are made in state legis- Differs from 
latures. The process of making a law in the United States ^tateprac- 
is similar in its general outlines, but it differs so much in 
detail that it is desirable for us to follow the progress of 
a bill through the House of Representatives. 

Any member of the House may introduce bills, and this introduction 
privilege is exercised very freely. In the sixty-first Con- ^^^ refer- 

GI1C6 to I 

gress there were 33,015 bills introduced in the House committee J 
alone. No consideration can be given to most of this 
vast number of bills, which greatly increases the impor- 
tance of the committee system. There is no distinction 
made between the bills of ordinary members and of those 
who represent the administration. Bills are introduced 
by filing them with the clerk. Their titles are printed in 
the Journal and Record, which constitutes their first 
"reading." They are then delivered to the Speaker, who 
refers them to committees in accordance with the rules 
of the House. At the third session of the sixty- third 
Congress there were fifty-eight of these committees, the 
most important being those on Ways and Means, Ap- 
propriations, Judiciary, Banking and Currency, Inter- 
state and Foreign Commerce, Rivers and Harbors, and 
Rules. These committees, generally speaking, consist 
of from seven to twenty-one members, the latter being 
the number in fourteen and the former in eleven cases. 
The work of the committees in considering bills is similar 
to that of the committees in a state legislature, and the 
same criticism of the system applies in this case. There 

269 



270 GOVERNMENT OF THE UNITED STATES 

is the same failure to hold the committees clearly respon- 
sible and the same sort of log-rolling methods in securing 
favorable committee reports. 
The Speaker We have already seen that the Speaker in the colonial leg- 
pnor 10 1909 j5lg^|-^J.g ^g^g i-j^g chief popular representative of the people, 
and as such had a degree of authority rather unusual in 
such a position. The tradition thus established continued 
to have weight in the std-te legislatures after the Revolution 
and in the Congress under the Constitution of 1787. It 
was only natural, therefore, that the Speaker should have 
been intrusted with the appointment of committees. As 
time went on and the number of bills introduced in Con- 
gress increased, the part of the committees in determining 
which of them should come before Congress for considera- 
tion became more important. They smothered most of 
the bills introduced, and their power in this regard became 
very arbitrary. We have already seen how poor the 
facilities for debate are in the House of Representatives, 
and it need not surprise us to learn that practically all 
of its real activities are carried on in committee. It is 
only a step from the realization of this fact to an under- 
standing of the power of the Speaker who appointed these 
committees. The power of each member of Congress 
depends upon the committees to which he is appointed. 
The Speaker could make each appointment the price of 
submission to his leadership. He therefore became almost 
the absolute dictator of the House. 
Rules With the increase in the number of bills introduced and 

the number of committees, the time came when the num- 
ber of measures reported from committees was in excess 
of what the House could pass upon. This overcrowding 
of the calendars meant that important measures might 
be lost because other and less important measures stood 
ahead of them. The House met this difficulty in two 



Committee 



THE MAKING OF A FEDERAL LAW 271 

ways. One was by giving certain committees the right 
to call up their measures in preference to the general run 
of bills. Among these committees were those on Ways 
and Means, Appropriations, Elections, and Rivers and 
Harbors. The second method of relief from overcrowd- 
ing was through the Rules Committee. This committee 
had been originally simply the committee to which pro- 
posed changes in the rules were referred. It developed 
the privilege of reporting at any time motions to suspend 
the rules and establish a special order for the consideration 
of a bill at a specified time. It thus had in its hands the 
power to determine what bills should be considered by the 
House. Down to 19 10 this committee consisted of live 
members, including the Speaker, who always appointed 
the two next most influential members of the majority 
party as his colleagues. These men were of course his 
most intimate associates and lieutenants. Thus was 
established another link in the chain with which the 
Speaker bound the House. Add to all this the fact that 
the Speaker would recognize for the purpose of making 
motions only those members whom he pleased, and the 
dominant part he played in lawmaking is easy to under- 
stand. 

So long as he exercised his power simply as a fairly The revolu- 
faithful representative of the majority party, the only *^°^ °^ ^^'^ 
objectors were to be found among the minority. When, 
however, as was the case with Speaker Cannon, the power 
came to be used as a personal weapon and against meas- 
ures which many of the majority party desired to see 
adopted, it was not surprising that a revolt ensued. The 
attack upon Cannon took the form of a reduction of his 
power. This was accomplished by increasing the member- 
ship of the Committee on Rules to eleven ; by prohibit- 
ing the Speaker from being a member of that committee ; 



272 GOVERNMENT OF THE UNITED STATES 

and by vesting its election in the House itself. The 
Speaker was thus shorn of one of his most potent weapons. 
This process was still further carried out in the sixty- 
second Congress by giving the appointment of all commit- 
tees to the House itself. We have already seen in the 
previous chapter that this election by the House is only 
nominal, the choice being left practically to the chairman 
of the Committee on Ways and Means. The result is 
that he has now become more influential than the Speaker. 
The latter continues to fill a large place in the public eye, 
but this is not accompanied by the power which Cannon, 
Reed, or Carlisle possessed. It may still be doubtful 
whether any great gain has been accomplished by shift- 
ing the Speaker's influence to the chairman of the Com- 
mittee on Ways and Means. We had, prior to 19 10, 
come to regard the Speaker as responsible for what went 
on in the House. It will be years before the people at 
large will come to have a similar feeling toward the chair- 
man of the Committee on Ways and Means. 

When a bill is reported from the committee, it is placed 
upon one of three calendars, in the order in which it was 
reported from committee. The first is known as the 
"Calendar of the Committee of the Whole House on the 
State of the Union," and is usually referred to as the 
''Union Calendar." On it are placed all bills relating to 
taxation, the general appropriation bills, and other public 
bills directly or indirectly making appropriations. The 
second is known as the ''House Calendar," to which are 
referred all other public bills. The third is the " Calendar 
of the Committee of the Whole House," upon which are 
placed all bills of a private character.^ 

1 Mostly claims against the government and bills granting pensions. 
A new rvile, adopted in 1909, provides for a fourth calendar for imanimous 
consent. A member of the House may have any bill on the House or Union 
calendar transferred to this fourth calendar. On the first and third Mondays 



THE MAKING OF A FEDERAL LAW 273 

Second reading is an actual reading in full of the bill The " morn- 
for the purpose of offering amendments. The "morning "^^ 
hour" — that is, the period of each session after business 
on the Speaker's table and unfinished business have been 
disposed of — is devoted to the call of committees in 
regular order.^ Each committee when named may call 
up any bill previously reported by it which is listed on 

of each month and on the last six days of the session, the first order of busi- 
ness is the "calling" of the bills which have been for three days upon the 
calendar for unanimous consent. If an objection is made to the considera- 
tion of any bill so called, it is stricken from the calendar. It may be put 
back once more upon the apphcation of any member, but if objected to 
again it loses its place permanently and goes back to the calendar from 
which it was taken. There is still a fifth calendar, of "Motions to Dis- 
charge Committees," upon which any member may place a motion to dis- 
charge a committee from further consideration of any public bill which has 
been in the hands of the committee for fifteen days. The object of this 
provision is to prevent the absolute control of committees over bills in their 
hands. It sometimes happens that a bill which the majority of the House 
very much desire falls into the hands of an unwilling committee. The 
discharge of a committee, however, is a step which the House is very re- 
luctant to adopt. A general resort to this expedient would break down the 
committee system. The Calendar of Motions, to Discharge Committees 
is called on Mondays after the Unanimous Consent Calendar and motions 
to suspend the rules have been disposed of. 

1 The House of Representatives meets as a body at twelve noon of each 
legislative day. The order of business is : First, prayer by the chaplain ; 
second, reading and approval of the Journal ; third, correction and reference 
of bills ; fourth, business on the Speaker's table, consisting of such matters 
as messages from the President, bills returned from the Senate, etc. The 
fifth order is unfinished business which was being considered in the House 
at the close of the previous day's session, except certain matters which 
have special periods set apart for them. The sixth order is the "morning 
hour" for the consideration of bills called up by committees. The seventh 
is the motion to go into the Committee of the Whole House. The last is 
orders of the day, i.e. measures which the House has voted to consider at 
that time. Certain days in the week are set aside for particular kinds of 
business. Wednesday of each week is set aside for the call of committees, 
all of the subsequent orders of business being omitted on that day. On 
Friday of each week, after the business on the Speaker's table has been 
disposed of, a motion is in order for the House to go into the Committee 
of the Whole, to consider bills on the private calendar. The second and 
fourth Mondays are set apart for consideration of matters relative to the 
District of Columbia. The Speaker may entertain a motion to suspend 
the rules only on the first and third Mondays of each month, and during the 
last six days of the session. 



of the Whole 
House 



274 GOVERNMENT OF THE UNITED STATES 

the House Calendar. This call of committees goes on 
until a motion is made to go into Committee of the 
Whole House. The call is resumed on the next occasion 
at the point where it was left off. Bills on the Union or 
private calendars are called up by means of motions to 
go into Committee of the Whole House for the purpose 
of considering the bill in question. For the purpose of 
making such motions the committees on Ways and 
Means, Appropriations, Rules, etc., have precedence over 
other committees or individual members. 

Committee The Committee of the Whole House on the State of 
the Union and the Committee of the Whole House, which 
are treated as quite distinct, are simply the House itself, — 
except that the Speaker names a member to preside in 
his stead. The procedure in committee is less formal 
than in the House and the yeas and nays cannot be 
demanded. When the Committee of the Whole has 
finished its consideration of the bill, it rises and the chair- 
man reports the bill to the House, with such amendments 
as it has adopted. If there have been amendments, the 
Speaker must then put the motion upon their adoption 
by the House. 

Engross- Unlike the procedure in most state legislatures, the 

ment, third three readings of a bill do not have to take place on three 
readmg, and ^ . ^ . 

passage separate days. After second reading, and the adoption 

of amendments if any, the Speaker at once puts the motion, 

*' Shall the bill be engrossed and read a third time?" 

Debate and motions to amend are then in order. If the 

vote which follows is in the affirmative, the bill is read a 

third time by title only.^ The question of passage is put 

by the Speaker immediately after the third reading. 

1 It is in order, however, for any member to demand the reading in full 
of the engrossed bill, in which case the bill must be laid aside until it has 
been engrossed. 



THE MAKING OF A FEDERAL LAW 275 

Debate rarely takes place at this point, because in moving 
the previous question on third reading it is usually moved 
" through to passage." There is nothing in the Constitu- 
tion or the rules of the House to require more votes than 
a mere majority of a quorum (a quorum is a majority of 
the members) to pass a bill. 

The House has three methods of voting : (i) By Methods of 
"sound of voices." This is usually the method first ^o^^^e 
employed, but either of the other methods may be de- 
manded either before or after it has been used. (2) By 
tellers. This method requires the demand of one fifth 
of a quorum. The members pass between tellers ap- 
pointed by the Speaker — those in the affirmative first — 
and are counted. (3) By yeas and nays. The Constitu- 
tion provides that one fifth of the members present may 
demand the yeas and nays. It takes a long time to call 
the roll of the House, and demands for roll calls are fre- 
quently used by the minority as a means of obstruction. 

No member of the House of Representatives may speak The limita- 
for more than one hour without special leave, which is, 5°w^ 
however, rather frequently granted in the case of impor- 
tant measures. No member may speak more than once 
upon a subject, except that the member reporting the bill 
from the committee may open and close the discussion. 
The ordinary method of bringing debate to a close is the 
familiar one of the "previous question." When a motion 
for the previous question is made before any debate has 
taken place, forty minutes is allowed for debate before 
the vote is taken. The time is divided equally between 
the friends and opponents of the measure. It is not un- 
common for the member calling up the bill on behalf of 
the committee to announce that at the end of his hour he 
will move the previous question. After speaking for a 
few minutes he will yield the floor to members of his own 



276 GOVERNMENT OF THE UNITED STATES 

side and the opposition alternately until the time is ex- 
hausted. The previous question cannot be moved in the 
Committee of the Whole. Any limit upon debate there 
is settled in the House before it resolves itself into com- 
mittee. When general debate in Committee of the 
Whole has been ordered closed, subsequent debate in 
the committee may take place under the '^ five-minute 
rule." This provides that a member moving an amend- 
ment may speak for five minutes, and one other person 
five minutes in reply. It is under this rule that the best 
debating in the House of Representatives is done. In 
the House itself the previous question is used quite rigidly 
to limit debate, except on the more important questions. 
With regard to these the time when a vote is to be taken 
is usually settled in advance by motion of the Rules Com- 
mittee or by agreement. The physical difficulties in the 
way of debate in the House have already been commented 
on. Generally speaking, it has little effect on the meas- 
ures under consideration. Most speeches are frankly 
intended for political purposes and for circulation in the 
Record. 
Senate After passage the bill goes to the Senate, in which body 

it passes through practically the same stages as in the 
House. If the Senate rejects a bill, of course that ends its 
career. If the Senate passes the bill without amendment, 
it is returned to the House and enroUed on parchment for 
signature by the President. If the Senate amends a bill, 
it returns it to the House with its amendments. If the 
House disagrees with the Senate's amendments, it may 
either ask for a conference or simply send a notice of its 
disagreement to the Senate. In the latter instance, the 
Senate either reconsiders its amendments or asks for a 
conference. If a conference is requested, each house 
appoints an equal number of "managers," who arrive 



amend 
ments 



^nt^'Bttawi Congress of lljc Inilei States of America; 

git thg gltinl Session, 

Begun and held at the City of Washington on Monday, the second day of December, 
one thousand nine hundred and twelve. 



A.N A.CT 

To provide American register for the steam yacht Diana. 



Be it enacted by the Senate and House of Representatives of the United 
States of America in Congress assembled, That the Commissioner of Navigation 
he, and he is hereby, authorized and directed to cause the steam yacht Diana, 
vvrecked and repaired in the United States, and owned by C. Ledyard Blair, 
a citizen of the United States, residing at Peapack, New Jersey, to be registered 
as a vessel of the United States : Provided, That said vessel shall not at any 
time hereafter engage in the coasting trade, under penalty of forfeiture. 




Speaker of the Hovie of Representatives. 





resident of the Senate pro tempcyre. 

An Act of Congress after it has received the approval of the President. 



veto 



THE MAKING OF A FEDERAL LAW 277 

at some sort of a compromise, and embody this in a report 
which is acted on by each house directly. After the 
final form of the bill has been settled in this way, it is 
enrolled on parchment and examined by the Committee on 
Enrolled Bills. It is then signed by the Speaker and by 
the President of the Senate, and transmitted to the Presi- 
dent for his approval. 

If the President approves the bill, he signs it, and it President's 
becomes a law. If he does not approve it, he may return 
it with his objections to the house in which it originated. 
If this house votes for the passage of the measure, not- 
withstanding the President's objections, by a two-thirds 
majority of those voting, the bill is sent to the other house, 
and if passed there by a similar majority it becomes a 
law. If the President neither signs nor returns the meas- 
ure within ten days, it Hkewise becomes a law. Measures, 
however, which reach the President during the last ten 
days of the session become law only if signed by him. 
That is, the President has a ''pocket veto." A bill which 
in any of the ways above described has become a law, is 
deposited in the office of the Secretary of State. 

SUGGESTIONS FOR FURTHER STUDY 

Bryce, chs. xiii to xvii, contains a brilliant and critical account 
of our national legislature. Beard, pp. 267-293, will also be very 
useful. On the recent changes in the rules see Reed, pp. 69-93. 
The rules of the House of Representatives and Senate are contained 
in the Manuals of the respective houses. They may be obtained in 
the same way as other United States documents. They are indis- 
pensable for serious study of this subject. 

Of the many books on the procedure of Congress the best is 
McCall, S. W., The Business of Congress. Reinsch, P. S., American 
Legislatures and Legislative Methods, is a book of great value on the 
whole field of legislatures. Follett, M. P., The Speaker of the House 
of Representatives, discusses fully the origin and development of the 



278 GOVERNMENT OF THE UNITED STATES 

Speakership. Fuller, H. B., The Speakers of the House, gives in- 
teresting information concerning the successive Speakers. Wilson, 
WooDROW, Congressional Government, gives a very pointed and 
profitable criticism of our Congress. 

Topics : 

The careers of the more important Speakers, as Clay, Winthrop, 
Blaine, Carlisle, Reed, and Cannon, will be found fruitful sub- 
jects for reports. 

The Congressional Record may be used to find illustrations of the 
principles brought out in the text. 

The class may be resolved into a miniature House of Representa- 
tives (with the teacher preferably as Speaker). Bills may be 
drafted and put through in accordance with the rules. Stu- 
dents become intensely interested in such an exercise and do 
voluntarily a great deal of work because it seems like play. 



CHAPTER XXIII 
THE UNITED STATES COURTS 

We have already, in the chapter on our federal system, Jurisdiction 
glanced at the judicial power of the United States. It ^nite^d 
is now time to consider the jurisdiction of the United States 
States courts more in detail. ^° ^ 

In the first place, cases may be brought to them involv- 
ing certain parties, including : 

(i) The United States. 

(2) Ambassadors, other public ministers, or consuls. 

(3) States (under the Eleventh Amendment to the Con- 
stitution a state cannot without its consent be sued by 
a citizen of another state or of any foreign state). 

(4) Citizens of different states (by a legal fiction a 
corporation chartered under the laws of a state is for this 
purpose regarded as a citizen of that state). 

In the second place, certain kinds of legal questions 
give rise to cases that can be brought in the United States 
courts. These are : 

(i) All cases in law or equity arising under the Con- 
stitution, laws, and treaties of the United States (including 
criminal cases). 

(2) All admiralty and maritime cases. 

In most of the above instances, a case may be brought 
in either the state or United States courts in the discre- 
tion of a plaintiff. The defendant may secure the re- 
moval of a case begun in a state court to the lower United 
States courts for trial, on the ground that he is a citizen 
of a different state from that of the plaintiff. Most cases, 
however, in which the United States Constitution, laws, 

279 



28o GOVERNMENT OF THE UNITED STATES 



Relation of 
the federal 
judiciary 
and the 
states 



The law of 

the United 

States 

courts 



or treaties are relied on by either party, once begun in 
the state courts, cannot be taken into the United States 
courts unless the highest state court decides against 
the applicability of the superior national Constitution, 
law, or treaty. In this event, an appeal lies from the 
highest state court to the Supreme Court of the United 
States. 

The Constitution, laws, and treaties of the United 
States are, in the language of the Constitution, the ''su- 
preme law of the land," and every judicial officer, state 
and national, is bound by his oath of office to apply this 
supreme law, anything in the constitution or laws of the 
state to the contrary notwithstanding. This provision, 
together with the right of appeal just referred to, gives 
to the Supreme Court of the United States the last word 
in every conflict between state and federal law.^ 

In civil cases, the law of the United States courts is the 
law of the state in which the cause of action arises. In 
cases not covered by specific state statutes, the federal 
courts apply what they consider to be the common law 
of the state. This, on doubtful points, not infrequently 
differs from the interpretation of the common law given 
by the state courts themselves. In actions at law, the 



^ The orders of courts, however, do not enforce themselves, and if a state 
is disposed to back up its own law in spite of the action of the Supreme 
Court, the decision of the latter may be ineffectual. The United States 
marshal may, like a sheriff, organize a posse comitatus. The President is 
authorized to use the army of the United States or the militia in putting 
down opposition to the courts. Either of these methods may be effectively 
used against bodies of rioters or insurrectionists. To use them against the 
organized forces of a state would mean war. Many years ago Georgia 
hanged two men, Grady and Van Tassel, although their appeals were pend- 
ing in the Supreme Coiirt. Since the Civil War, every decision of the United 
States Supreme Court by which a state law has been held unconstitutional, 
has been peaceably accepted by the state in question. There can be little 
doubt that the states have become confirmed in this habit of acquiescence. 
Our feeHng of nationality, it is to be hoped, is now so strong that we may 
never see a decision of the Supreme Court nullified by state authority. 



THE UNITED STATES COURTS 281 

rules of procedure are as near as may be those of the state 
courts. The procedure of the federal courts in equity 
and admiralty cases is governed by rules made by the 
Supreme Court and supplemented by regulations of the 
inferior courts.^ The criminal law of the United States 
is wholly statutory, except as respects crimes committed 
in places ceded to the United States for forts, post offices, 
etc. In the District of Columbia, the territories of 
Alaska and Hawaii, and our insular possessions, judicial 
power is exercised by virtue of act of Congress. In the 
Philippines and Porto Rico, the " substantive law " remains 
Spanish while the "remedial law" or "procedure" has 
been recast by American hands. 

The Constitution of the United States vests the The United 
judicial power in a Supreme Court and in such inferior ?J^*®^ 
courts as Congress may establish. The Constitution 
further provides that all judges shall hold ofhce for life, 
removable only by impeachment, and shall be given a 
compensation which cannot be decreased during their 
term of office. Otherwise, Congress has a free hand in 
organizing the Supreme Court and in creating other 
courts. Except in the case of the Supreme Court, it can 
even legislate a judge out of office by abolishing the office. 
This was done by the Republicans in 1802 in the case of 
sixteen circuit judgeships created by the Federalists in 
1801. Under the Constitution, there can be no com- 
pulsory retirement of judges on account of age or infirmity. 
Congress, however, has provided that a judge who has 
served not less than ten years and reached the age of 
seventy may retire on full pay. 

At present the judicial establishment of the United The several 
States stands as follows : courts 

(i) Supreme Court, consisting of a chief justice and 

1 Equity is still kept distinct from law in the federal courts. 



282 



GOVERNMENT OF THE UNITED STATES 



Jurisdiction 
of the sev- 
eral courts 



eight associate justices, each assigned to a circuit. The 
salary of the chief justice is $14,500, and of the associate 
justices $14,000, per year. 

(2) Circuit courts of appeals, consisting of any three 
of the following : 

{a) The justice of the Supreme Court assigned to 
the circuit. (Rarely acts.) 

{h) Circuit judges, of whom there are at least two 
in each circuit. Their salary is $7000. 

(c) Any district judge within the circuit. The dis- 
trict judge from whose decision the appeal is 
taken is of course ineligible. 

(3) District courts, of which there is at least one in 
each state (in New York there are four), consisting of 
one or two district judges. Their salary is $6000 per 
year. To each of these courts is attached a United States 
district attorney, a marshal, who corresponds to the 
sheriff in state courts, and other officers. In addition, 
each district court appoints a number of commissioners, 
who issue warrants and conduct the preliminary examina- 
tions of persons accused of crime, holding them for trial, 
admitting them to bail, or discharging them. 

The district court is the trial court for all cases originat- 
ing in the United States courts, except a very few cases 
which may be begun in the Supreme Court. Appeals 
lie from the district court to the circuit court of appeals, 
except in cases involving the question of jurisdiction in 
criminal cases where death is the penalty, in prize cases, 
in equity proceedings by the United States under the 
Interstate Commerce Law, and in cases requiring the 
interpretation of the Constitution or a treaty. In these 
cases the appeal must be taken directly to the Supreme 
Court. The decision of the circuit court of appeals with 
regard to the cases brought, before it is generally final. 



THE UNITED STATES COURTS 283 

The Supreme Court may, if it considers the question of 
sufficient importance, order the record laid before it for 
review. The circuit court of appeals may request the 
instructions of the Supreme Court on any point before 
rendering a decision. The -Supreme Court has original 
jurisdiction in cases affecting ambassadors, other public 
ministers and consuls, or in which a state is a party.^ 
There have been few cases brought before it under this 
rule. Otherwise it is purely an appellate court. 

The average of legal abihty of the circuit and district Personnel 
judges is above that of the state courts. The life tenure, °^ *^® 

, , . , .,..,,. United 

the fair salary, — as judicial salaries go, — and the pros- states 

pect of a pension in old age make the position an attractive <^o"'*s 
one. The President selects these judges, usually on the 
recommendation of the Attorney-general, who of course 
consults the senators from the state concerned. The 
first consideration in the appointments too often is politi- 
cal advantage, but fitness is sincerely sought for. Bad 
judicial appointments bring more discredit on the ap- 
pointing power than any other executive mistake. The 
justices of the Supreme Court are also almost without 
exception appointed from the pohtical party of the Presi- 
dent. Great care, however, is taken to select men of 
high merit. The Supreme Court of the United States 
has always enjoyed the respect of the people for its learn- 
ing and purity of motive. Its decisions have several 
times precipitated fierce political struggles, and on these 
occasions the court has been criticized with great severity. 
Witness Lincoln's comments on the Dred Scott decision 
and those of the Democratic platform of 1896 on the 
Income Tax decision. Such situations are inevitable 

1 Such cases, when they arise, are usually tried in the district court, it 
having been held that the original jurisdiction of the Supreme Court is not 
exclusive. 



284 GOVERNMENT OF THE UNITED STATES 

because the constitutional questions which the court must 

pass upon are themselves the subject of violent political 

controversy. It is a matter of congratulation to the 

American people that in the hottest attacks upon the 

court's decisions its honesty has never been impugned. 

The Su- We have already noted the source from which the 

preme Court United States courts derived their power to hold state 

and the Con- . ; . i r i t i 

stitution statutes unconstitutional, it is doubtiul it the framers 

of the Constitution intended to give them a similar power 
with regard to statutes of Congress. They evolved this 
power, however, from the general nature of a written con- 
stitution, just as did the state courts. The first assertion 
of this power was in the case of Marbury vs. Madison,^ 
decided in 1803. It has been exercised somewhat over a 
score of times since, — far less often than one would im- 
agine from the volume of writing on the subject.'^ Several 
of these judicial vetoes have, however, been of great 
importance. Furthermore, our interest in this power is 
aroused quite as much by the cases where the court has 
declined to use it. 

The meaning to be given to doubtful clauses of the 
Constitution is determined by the general social and 
political views of the judge, rather than by any process 
of legal reasoning. These questions are not covered by 
a legal education no matter how profound. Federalist 
John Marshall in over thirty years of service as chief 
justice decided case after case in favor of the wide exercise 
of the powers of Congress. A Jeffersonian judge would 
have done quite otherwise. The Dred Scott decision 
was political in the sense that Chief Justice Taney de- 
cided it in accordance with a view of the Constitution 
held by the Southern Democrats but repudiated by the 

^ I Cranch 137. 

2 The fear of its exercise has doubtless operated as a check upon Congress. 



THE UNITED STATES COURTS 285 

Republicans. Of late years, decisions of the court have 
been affected by the social and economic rather than the 
political opinions of its members. Judges of conservative 
temper have deemed unconstitutional social reform 
measures which others more radical in their social and 
economic philosophy have thought sound.^ 

Every government, in the course of its operation through The court 
thousands of agents, inevitably inflicts a good many 
wrongs on private citizens. For that great class of 
wrongs against the citizen's right to be free from bodily 
harm, including restraint of his liberty, known by the 
lawyers as "torts," our government has never given any 
remedy except against the officer who committed the 
wrong. This is rather unsatisfactory, as the officer may 
not have the money to pay a judgment found against 
him. When, however, the wrong arises from a breach 
of contract, actual or implied, the United States gives 
its citizens the right to sue it in the court of claims. This 
court consists of a chief justice and four associate justices, 
and sits at Washington. If a claim, however, does not 

1 "In the case of Locliner vs. New York (198 U. S. 45) the majority of the 
court decided that a New York statute prohibiting the employment of men 
in bakeries more than ten hours per day was not a proper health regulation 
and deprived employers and employees of their liberty of contract. In 
delivering the opinion of the court, Justice Peckham said, 'Statutes of the 
nature of that under review, limiting the hours in which grown and intelli- 
gent men may labor to earn their living, are mere meddlesome interferences 
with the rights of the individual.' Contrast this expression of narrow in- 
dividualism with the broader social pohcy of Justice Holmes, dissenting, 
who said: 'I think the word "liberty" in the Fourteenth Amendment is 
perverted when it is held to prevent the natural outcome of a dominant 
opinion, unless it can be said that a rational and fair man necessarily would 
admit that the statute proposed would infringe fundamental principles as 
they have been understood by the traditions of our people and our law. 
It does not need research to show that no such sweeping condemnation can 
be passed upon the statute before us.' In each case the judge was giving 
expression to his social rather than his legal opinion. In almost every con- 
stitutional question the decision rests on social and political grounds. Whether 
the judges will or no, the policy of the law is the real ratio decidendi." — T. H. 
Reed, Government for the People, p. 171. 



286 GOVERNMENT OF THE UNITED STATES 

exceed $10,000, it may be prosecuted in the district court. 
Congress makes a lump sum appropriation to pay any 
judgments against the United States. The court of 
claims acts not only as a court, but also, on the request 
of a committee of Congress or head of a department, in- 
vestigates and reports upon the acts involved in any claim 
against the government with which Congress or the 
department in question may have to deal. 

SUGGESTIONS FOR FURTHER STUDY 

An excellent discussion of the subject of this chapter will be found 
in Beard, pp. 294-314, and in Bryce, chs. xxii to xxiv. Reed, 
pp. 161-178, gives more fully the writer's views on the relation of 
the courts to the Constitution. See also Taft, W. H., Present-day 
Problems, pp. 290-355, and Wilson, Woodrow, Constitutional 
Government in the United States, pp. 142-172. 

For teachers, Baldwin, S. E., The American Judiciary, is the best 
general book. On the relation of the courts to the Constitution see 
''Suggestions" for Chapter IV, and the following: Haines, C. G., 
The American Doctrine of Judicial Supremacy ; Beard, C. A., The 
Supreme Court and the Constitution ; Moore, B. F., The Supreme Court 
and Unconstitutional Legislation. Carson, H. L., The Supreme 
Court of the United States, is very long and rather uncritical, and 
Myers, Gustavus, History of the Supreme Court of the United States, 
is very radical and inaccurate. 
Topics : 

A visit to the nearest United States district court, if such a visit 
is possible, may be made the basis of reports on the procedure 
of United States courts as compared with state courts. 
A debate on the subject, '^ Resolved, That the courts should not 
be permitted to hold acts of Congress unconstitutional," will 
bring out the points of the controversy raging about the federal 
courts. 



CHAPTER XXIV 
THE EXECUTIVE DEPARTMENTS 

In striking contrast to the confusion which prevails Organiza- 

. 1 • • .• i-u • r tion of 

in the organization of state administration are the simplic- federal ad- ' 

ity and centrahzation which characterize that of the ministration 
federal government. With a few exceptions each of the 
multifarious activities of the United States is assigned 
to one of the ten departments presided over by a member 
of the President's Cabinet.^ The internal organization 
of the department is so arranged that each Secretary may, 
through a series of responsible subordinates, control every- 
thing which falls within its jurisdiction. Each department 
is divided into numerous "bureaus" and into less dignified 
"offices" and "divisions." Their chiefs report either 
directly to the Secretary or to one of his assistant secre- 
taries. The only important agencies of the government 
outside this general scheme of administration are the 
Interstate Commerce Commission, the Civil Service Com- 
mission, the Public Printer, the Librarian of Congress, 
and the Regents of the Smithsonian Institution. 

1 In general, each department deals with a group of similar activities, 
but the'-e are some very strange anomaUes in the distribution of functions. 
For example, the Public Health Service is a bureau of the Treasury Depart- 
ment, while the Pure Food and Drugs Act is administered by the Bureau 
of Chemistry of the Department of Agriculture. These peculiarities are 
the result of historical causes. A very significajit example of the evil which 
may result from the improper distribution of functions may be found in 
the celebrated BaUinger-Pinchot episode during the administration of 
President Taft. The Secretary of the Interior, Mr. Ballinger, had juris- 
diction over public lands and their withdrawal from entry, while the work 
of forest preservation was in the hands of the Forest Service in the Depart- 
ment of Agriculture. Mr. Ballinger's opening of certain lands for entry 
occasioned a very bitter and unseemly quarrel between him and Mr. Pinchot 
chief of the Forest Service. 

287 



288 GOVERNMENT OF THE UNITED STATES 

Department The first department in order of creation and official 
° * ® dignity is the Department of State. The Secretary of 
State is regarded as chief member of the Cabinet, and the 
position has been filled by many of our ablest public men, 
among them Thomas Jefferson, James Madison, John 
Quincy Adams, Henry Clay, Daniel Webster, John C. 
Calhoun, William H. Seward, John Hay, and Elihu Root. 
The Secretary of State of the United States has numerous 
duties like those of the secretaries of the several states, 
such as affixing the Great Seal of the United States and 
attesting the signature of the President on all orders, 
commissions, and proclamations. In his department are 
deposited the bills which have become law either by the 
signature of the President or otherwise. He is the medium 
of official communication between the national govern- 
ment and the states. It is in this capacity that he re- 
ceives the ratifications of a constitutional amendment 
and, when sufficient have been received, proclaims its 
adoption. His most important duty, however, is the 
conduct of the foreign relations of the country. He is 
assisted by ambassadors, ministers, and other diplomatic 
agents stationed at every principal capital of the world. 
He also has under his direction the consuls who watch 
over our commercial interests at every important port 
and commercial center. The salary of the Secretary of 
State is $12,000 a year. Next to the Secretary ranks the 
counselor, with a salary of $7500, who becomes the act- 
ing Secretary of State in the absence of the Secretary. 
There are also three 'assistant secretaries of state. The 
second assistant secretary is by custom a permanent 
officer and has charge of the diplomatic correspondence, 
the drafting of treaties, etc. The duties assigned to the 
first and third assistant secretaries vary greatly under 
different administrations. For the purpose of facihtating 
the transaction of business, the State Department is 










P o c 

- F ,'B ~ 



CO ^^ / , 

3 






'<L. //// /fU/'////' /////f/f// ■ //ry^ //!■/// 








A passport, the issuance of which falls among the many duties of the State 

Department. 



. THE EXECUTIVE DEPARTMENTS 289 

divided into seven bureaus. In addition to the bureaus, 
and distinct from them, are various divisions, which have 
special charge of matters concerning Mexico, Latin- 
America, Western Europe, the Near East, and the Far 
East, respectively. 

The duties of the Treasury Department are concerned Treasury 
with: (i) The collection of revenue; (2) The custody l^epartment 
and legal disbursement of the money so collected ; (3) The 
protection of the stabiHty of our monetary system. The 
Secretary of the Treasury has very wide discretion within 
the scope of these functions. It is important to remem.ber 
that, unlike the other Cabinet officers, who are respon- 
sible to the President alone, the Secretary of the Treasury 
has many duties, fixed by act of Congress, with regard 
to which he is the final authority and as to which he reports 
directly to Congress. There are three assistant secre- 
taries, who receive annual salaries of $4500. Under the 
first assistant are the Director of the Mint, who superin- 
tends the coining of metal money ; the Bureau of Engrav- 
ing and Printing, which prints the various kinds of paper 
money ; the Register of the Treasury, who signs and issues 
bonds of the United States ; the Comptroller of the Cur- 
rency, who supervises the national banks; the division 
of Bookkeeping and Warrants, which issues the warrants 
by virtue of which money is paid out; and the Secret 
Service. Under the second assistant come the collectors, 
surveyors, naval officers, etc., who have to do with the 
collection of the tariff duties at the various ports of entry. 
Under the third assistant are the miscellaneous bureaus 
of the department, some of which deserve mention. The 
Supervising Architect has charge of the erection of all 
government buildings. The Commissioner of Internal Rev- 
enue collects the internal revenue taxes through collectors 
in each of the districts into which the country is divided. 
The Life-saving Station Service, with a superintendent at 



290 GOVERNMENT OF THE UNITED STATES 

its head, is likewise included in this same division of the 
Treasury Department. The Public Health Service, the 
chief officer of which is known as the Surgeon-general, was 
- originally intended for the protection of mariners. It has 
since very much outgrown these narrow limits, but it is 
still a branch of the Treasury Department. The Treasurer 
of the United States has actual custody of the moneys of 
the government and pays them out on proper warrants. 
War The Secretary of War is always a civiUan and has a much 

Department jess detailed control of the work of his department than 
either the Secretary of State or the Secretary of the 
Treasury. The actual direction of the army of the United 
States, including the supply of food, clothing, and muni- 
tions of war, is in the hands of the General Staff. The 
Chief of Staff is semi-independent of the Secretary and 
communicates directly with the President. The War 
Department not only undertakes the management of the 
army, but performs a variety of civilian duties. All 
navigable waterways are under its control, and no 
bridge or obstruction may be built in or over them with- 
out its consent. The work of river and harbor improve- 
ment for which Congress appropriates so much money is 
carried on by the engineer corps of the army. The gov- 
ernment of the Philippine Islands and Porto Rico is under 
the supervision of the Secretary of War, and a Bureau of 
Insular Affairs attends to the details of this task. The 
Panama Canal Zone is under the authority of the Secre- 
tary of War, and after some experiments the actual work 
of constructing the canal also was assigned to the War 
Department. There is but one assistant secretary of 
war. He has, however, very clearly defined duties, 
which include the relations of the personnel of the army 
to the department {i.e. enlistment, discharge, clemency, 
honors, army posts, the National Guard, etc.) and ques- 
tions affecting navigable water. 



THE EXECUTIVE DEPARTMENTS 291 

The office of Attorney-general was created by the first Department 
Congress. The Attorney-general was to be the legal °* Justice 
adviser of the President and of the executive departments. 
His salary was fixed at $1200, which even at that day was 
absurdly small, and he was not expected to give his whole 
time to the duties of the position. The volume of busi- 
ness rapidly increased, and a number of assistants became 
necessary. It was not until 1870, however, that he be- 
came head of a department, the Department of Justice. 
The duties of this department may be divided into three 
groups : (i) Representation of the United States in the 
courts ; (2) Furnishing legal advice to the President and 
the executive departments; (3) The appointment and 
supervision of district attorneys, marshals, etc., and in 
general the maintenance of everything essential to the 
judicial establishment of the United States, except those 
duties which belong to the judges. 

Next below the Attorney-general in the personnel of 
the department comes the Solicitor-general (salary $7500), 
whose principal duty is the preparation of cases for the 
Supreme Court and arguing them there. The assistant 
to the Attorney-general (salary $7000) is charged with the 
enforcement of the so-called Sherman Anti-Trust Law. 
There are also several assistant attorney-generals, to each 
of whom is assigned a designated branch of the legal work 
of the government. There are also special legal advisers 
for several of the departments, who are all regarded as 
officers of the Department of Justice. Supervision over 
district attorneys, marshals, and clerks is maintained by 
the Division of Accounts and a corps of examiners. The 
federal penitentiaries at Leavenworth, McNeil Island, 
and Atlanta are under the jurisdiction of a superintendent 
of prisons and prisoners, appointed by the Attorney- 
general. 



292 GOVERNMENT OF THE UNITED STATES 



Post-office 
Department 



Navy 
Department 



The post office is really not a branch of the government, 
but a great business enterprise carried on incidentally to 
the ordinary purposes of the government. Its receipts 
nearly, if not quite, pay the expenses of the service. They 
are kept in the treasury of the United States, together 
with such appropriations as Congress makes to meet 
deficits, in a separate fund which is directly at the dis- 
position of the Postmaster-general. This officer was 
provided for by the first Congress, but did not become a 
member of the Cabinet until the administration of Andrew 
Jackson. He is assisted in the management of the de- 
partment by four assistant postmaster-generals. Many 
criticisms have been made of the administration of the 
post office, and it has often been alleged that it could 
be conducted more cheaply by private enterprise. It 
is probable that no private enterprise could conduct at 
a profit such a service as the rural free delivery. The 
cheap carriage of periodicals, which has been one of 
the chief financial burdens of the department, serves 
an important social purpose in the distribution of in- 
formation and culture. The vast amount of govern- 
ment mail must also be taken into account in estimating 
the financial success of the post office. On the whole, 
we get better and more extensive service than any 
private corporation would give us at the present postage 
rates. ^ 

The United States Navy is under the direction of the 
Secretary of the Navy, who is always a civilian. He has 
under him an assistant secretary, who, besides acting for 
the Secretary in the latter's absence, has the duty of 

^ A few years ago startling charges of graft were made against the de- 
partment, and the investigations which followed resulted in putting the 
purchase of supplies into the hands of a purchasing agent, directly under 
the eye of the Postmaster-general, and in making the inspectors the 
peculiar representatives of the head of the department. 



THE EXECUTIVE DEPARTMENTS 293 

passing on repairs to be made to ships and of conducting 
the affairs of the Naval Mihtia. The Navy Department 
is organized into a number of independent bureaus, the 
heads of which are responsible to the Secretary. The 
names of these bureaus sufficiently indicate the nature of 
their functions : Construction and Repair, Navigation, 
Medicine and Surgery, Supplies and Accounts, Yards and 
Docks, Ordnance, and Steam Engineering. The chief of 
the Bureau of Navigation, selected by the Secretary of 
the Navy from the higher officers of the navy, is in effect 
his Chief of Staff. A General Board has been created by 
departmental regulations, which advises the Secretary 
with regard to the technical side of his office. To this 
extent it corresponds to the General Staff of the army, 
but as its powers are simply to advise, the Secretary of 
the Navy has a much greater personal control over the 
administration of the navy than the Secretary of War has 
over the army. 

The office of the Secretary of the Interior was not Department 
created until 1849, when the volume of business involved 
in the disposition of the public lands and in Indian affairs 
led to the creation of the department. The matters 
which now fall within the scope of this department are 
many and various. Indeed, it may be regarded as a sort 
of catch-all for the functions of the government which 
cannot properly be included anywhere else. On account 
of this multiplicity of functions, the Secretary is more 
of a court of appeal from the decisions of his subordinates 
than an administrative chief. The sale and giving away 
of the public lands under the '' Homestead" laws is under 
the direction of the commissioner of the General Land 
Office. The Geological Survey, the officer in charge of 
which is known as the Director, was created for the pur- 
pose of ascertaining the character of the public lands and 



of Interior 



294 GOVERNMENT OF THE UNITED STATES 

of reserving the mineral lands from sale or homesteading 
(see Chapter XXXIII). Its functions have, however, 
been greatly extended. One of its early tasks was the 
measurement of streams and the determination of other 
scientific questions relating to water supply. This work 
has grown into the vast Reclamation Service, which is 
now constructing great works for the irrigation of the 
arid lands of the Western states. The Commissioner of 
Indian Affairs is in charge of the Indian reservations and 
schools, the allotment of lands to those entitled to them, 
and other matters relating to the Indians. The Com- 
missioner of Patents administers the laws with regard 
to the protection of inventions and trademarks. The 
Commissioner of Education directs the little that the 
United States government does in the way of education. 
Department Although the United States had previously done some- 

of Agricul- thing to encourage better agricultural methods, it was not 
ture (D <=) ^ J 

until 1862 that a Department of Agriculture was created 
and placed under a commissioner. In 1889 it became a 
full-fledged department and its Secretary took a seat in 
the Cabinet. Its work, once confined to the introduction 
of improved vegetables and fruits, has now grown to 
enormous proportions and embraces many subjects 
only indirectly connected with agriculture. For example, 
the Bureau of Animal Industry, which originally took 
up merely questions of the breeding and feeding of ani- 
mals, is now charged with the prevention of the spread of 
communicable diseases among animals, the inspection 
of slaughter-houses, packing-houses and their products, 
the protection of livestock from suffering while being 
transported by railroad, etc. The Bureau of Chemistry 
has grown from a bureau for the chemical work of the 
department to be the administrative agent of the United 
States for the enforcement of the Pure Food and Drugs 



THE EXECUTIVE DEPARTMENTS 295 

Act. The Forest Service has now not only the duty of 
improving methods of forestation, but also the duty of 
administering the forest reservations set apart by the 
United States. The work of the Weather Bureau is well 
known and very important. The other bureaus of the 
department are: Bureau of Entomology, Bureau of 
Biological Survey, Bureau of Statistics, Office of Experi- 
ment Stations, Bureau of Soils, and Bureau of Plant 
Industry. There are also an Office of Good Roads and 
a Division of Publications. 

By a law approved February 14, 1903, a new depart- Department 
ment of the government was created, to be known as the ^^^^^' 
Department of Commerce and Labor. To this depart- 
ment were assigned a number of bureaus hitherto under 
the jurisdiction of the older departments and a few pre- 
viously unclassified branches of the service. The act of 
March 4, 1913, changed its name to the Department of 
Commerce and created a Department of Labor. The 
Bureau of the Census, as its name implies, is charged with 
the duty of making the decennial census of the United 
States. This has long since ceased to be a mere enumera- 
tion of the people. Statistics relative to agriculture, 
manufactures, defectives, delinquents, cities, pubhc 
indebtedness, pubUc expenditures, taxation, and many 
other subjects are gathered. The activities of the Bureau 
of the Census are now not only varied but constant. It 
collects annually, among other things, the statistics of 
births and deaths in certain states and cities, and of the 
finances of cities of thirty thousand population or more. 
The Bureau of Fisheries studies and pubHshes the facts 
relating to the protection and propagation of food fishes, 
although the laws for the actual carrying out of any poUcy 
of fish and game protection must be made by the states. 
It also investigates the subject of fishery methods. It has 



296 GOVERNMENT OF THE UNITED STATES 

engaged on a large scale in the business of fish culture and 
has stocked our waters with countless fish. The Alaska 
fisheries, including seal fisheries, and the protection of fur- 
bearing animals in that territory, are under its absolute 
authority. The Bureau of Foreign and Domestic Com- 
merce collects and publishes all sorts of information 
concerning commerce which may be of value to merchants 
and manufacturers. Its publications are very voluminous, 
including the annual Statistical Abstract, which contains 
condensed statements of commerce, manufactures, finance, 
etc. It issues daily consular and trade reports, which 
keep American business men informed of foreign trade 
opportunities. The Bureau of Standards is engaged in 
maintaining the standard of weights and measures, which 
now include not only measures of weight, distance, and 
the volume of liquids, but also measures of heat, light, 
power, etc. The Bureau of Navigation registers, enrolls, 
and licenses all vessels, from ocean liners to motor boats. 
It measures vessels for the assessment of the federal 
tonnage tax, etc. It is charged also with the enforce- 
ment of certain acts; for example, those governing wire- 
less telegraphy and for the protection of passengers. 
The Steamboat Inspection Service exists for the purpose 
of enforcing the laws as to hulls, machinery, bulkheads, 
boats, fire apparatus, etc., of all steam vessels navigating 
the waters of the United States. It establishes pilot 
rules and licenses the officers of steam vessels. The 
work of the Bureau of Lighthouses is evident from its 
title. The Coast and Geodetic Survey surveys and 
charts the coasts of the United States, including the in- 
sular possessions. It also determines the exact elevation 
of certain standard points throughout the country. In 
connection with the Bureau of Lighthouses, it publishes 
weekly information for mariners. 



THE EXECUTIVE DEPARTMENTS 297 

This latest department of the federal executive is Department 
simply an offshoot of the former Department of Commerce °^ Labor 
and Labor. It is divided into four bureaus : Immigra- 
tion, Naturalization, Labor Statistics, and the Children's 
Bureau. The first of these enforces the laws with regard 
to immigration (see Chapter XXXVIII). The Bureau of 
Naturalization handles all proceedings for the naturaliza- 
tion of aliens, except the final examination before a judge 
and such appeals as may follow his decision. The Bureau 
of Labor Statistics, as its name implies, collects and 
classifies all manner of statistics relative to the labor 
problem. The Children's Bureau was created for the 
purpose of studying the welfare of children. 

The Interstate Commerce Commission and the Civil Unattached 
Service Commission are fully discussed later (see Chapters ^^^^^^^ 
XXXV and XXV). The Pubhc Printer is appointed by 
the President by and with the advice and consent of the 
Senate. He has general direction over the great Govern- 
ment Printing Office, the largest of the sort in the United 
States. The Joint Committee on Printing, however, 
consisting of three members of the Senate and three of 
the House of Representatives, has large advisory powers. 
It controls the standard of paper to be used and super- 
vises the making of contracts for paper and other supplies 
by the Printer. A limited number of every document 
printed by the United States is given to each member of 
Congress. The rest are set aside for sale under the direc- 
tion of a Superintendent of Documents appointed by the 
Pubhc Printer. They are sold at the cost of the paper 
and of the printing from electrotype plates. 

The Smithsonian Institution originated in the bequest The Smith- 
to the United States by Tames Smithson of an estate of ^^!^^^ ^' 

•^ ** ^ stitution 

some $541,000, for the purpose of diffusing knowledge 
among men. To insure the carrying out of the terms of 



298 GOVERNMENT OF THE UNITED STATES 

the will a corporation was created, which now consists 
of the President, the Vice-President, the Chief Justice, and 
members of the Cabinet. The actual administration of 
the Institution is in the hands of a Board of Regents, 
made up of the Vice-President, the Chief Justice, three 
senators, three representatives, and six other persons 
appointed by joint resolution of the two houses. The 
Regents elect a distinguished scientist as secretary, who 
carries on the scientific work of the Institution. The in- 
come from the original gift has been supplemented by 
other gifts and liberal annual appropriations. Very 
valuable work in ethnology, zoology, ornithology, geology, 
and other branches of science has been done. The col- 
lections of the Institution have come to be of vast size 
and incalculable importance in their several fields. The 
Institution also carries on the exchange of documents 
of scientific value with foreign learned societies and gov- 
ernments. A somewhat spectacular but not very impor- 
tant part of the work of the Institution is the zoological 
park which it maintains at Washington. 
The Library The Library of Congress, which was at first intended 
of Congress gij^piy as a collection of books for the use of Congress, 
has developed into a great national library. Two copies 
of every copyrighted work have, since 1846, been deposited 
in the Congressional Library. It has large appropria- 
tions for the purchase of foreign books and periodicals, 
and it has benefited largely by gifts. It is the largest and 
most complete Ubrary in the United States, and is housed 
in the largest and most beautiful library building in the 
world. Not only does this library supply the needs of the 
country for a vast and comprehensive collection of books, 
but it sets the standard of library administration for the 
whole country. The classification of its materials which 
was made by the best experts in this line of work has been 




The White House from the front. 




The Congressional Library. 




One of the buildings of the Smithsonian Institution. 



THE EXECUTIVE DEPARTMENTS 299 

adopted by the leading libraries of the country. The 
Library of Congress sells to other libraries copies of the 
printed cards which make up its catalogue, thus insuring 
the proper classification of each book by the smaller 
libraries and relieving them of the trouble of making 
their own cards. The librarian, who is appointed by the 
President by and with the advice and consent of the 
Senate, has complete charge of the administration of the 
library. 

SUGGESTIONS FOR FURTHER STUDY 

None of the general works on American government except 
Harrison, Benjamin, This Country of Ours, chs. xi-xix, which 
was published in 1897, give more than a glance at this subject. See 
Beard, pp. 2^5-222, and Readings, pp. 197-205. The book which 
gives the most information is Gaus, H. C, The American Govern- 
ment. Much more readable, however, is Haskin, F. J., The American 
Government. The Department of Commerce and other departments 
have published valuable accounts of their activities. A study of 
each with charts of its internal organization will be found in Cyclo- 
pedia of American Government (Appleton). 

Teachers may use Fairlie, J. A., National Administration of the 
United States, although it is now a good deal out of date. See also 
Learned, H. B., The President's Cabinet. There is an elaborate 
work by Hunt, Gaillard, The Department of State. 

Every possible use should be made of the reports of the depart- 
ments where available. They may be secured at very small cost 
from the Superintendent of Documents. The American Year Book 
will keep you in touch with changes as they may be made. 

Topics : 

Any department or bureau will make a suitable subject for a 
report by a student. 



CHAPTER XXV 
THE CIVIL SERVICE OF THE UNITED STATES 

The civil The civil service of the United States includes all gov- 

service ernment employees except those belonging to the army 

and the navy, and those whose services are directly re- 
quired by the legislative and judicial departments. On 
June 30, 191 2, there were 395,460 persons belonging to 
the civil service. During the first three decades of the 
existence of our present government, the tenure of mem- 
bers of the civil service was regarded as dependent on 
nothing but good behavior. Men were appointed to 
office in part because they belonged to the same party 
as the appointing authority, but once in office they re- 
mained as long as their services were satisfactory. In 
1820 Congress adopted an act limiting the term of all 
employees of the United States to four years. The fact 
that an officer's term automatically expired at the end of 
four years, and that to keep him in office it was necessary 
to reappoint him, made it very easy for the appointing 
officer to give the position to a political friend. 
The spoils Following its general appHcation under Andrew Jackson, 

system ^]^g "spoils system" began to exercise a truly baneful 

influence on our federal government. We have already 
seen something of its effect upon the organization of polit- 
ical parties (see Chapter VII). From the administra- 
tive standpoint it was not less detrimental. Offices were 
filled with incompetent and untrained men, appointed 
because of their political services. Men appointed in this 
manner continued to regard their political services as 
their first duty. Another effect of the system was to 

300 



reform 



CIVIL SERVICE OF THE UNITED STATES 301 

bring upon the President, and to a less extent upon the 
heads of the various executive departments, an enormous 
pressure of office seekers. President Lincoln in the most 
trying times of the Civil War found that his attention 
was distracted from the gravest matters in order to settle 
the question of who should receive a minor postmaster- 
ship. 

It was not, however, until the assassination of Presi- Civil service 
dent Garfield by a disappointed ofhce seeker that definite 
action was taken to correct the evil. By the act of Janu- 
ary 16, 1883, the President was authorized to appoint 
three persons, "not more than two of whom shall be ad- 
herents of the same party," as Civil Service Commissioners. 
The duty of these commissioners was to assist the Presi- 
dent in preparing and carrying out rules to be made by 
him for the purpose of putting this act into effect. These 
rules were to provide for filling positions in the "classified 
service" by open, competitive examinations. The act 
provided for the classification of certain positions in the 
Treasury and Post-ofhce departments, and left the power 
of ordering the classification of other positions to the Presi- 
dent. The number of positions, appointment to which 
was to be made by examination, was approximately 
13,000 in 1883, and it had increased to somewhat over 
100,000 in 1902. President Roosevelt was particularly 
active in extending the civil service to new positions, and 
at the close of his term of office the number of classified 
positions was nearly 200,000. The last great addition 
was by executive order of President Taft, on October 15, 
191 2, when 36,236 fourth-class postmasters were included 
in the classified service. On June 30, 191 2, the total num- 
ber of positions subject to competitive examinations was 
236,061. Practically the only important class of officers 
left outside of the classified service were those of high rank, 



tions 



302 GOVERNMENT OF THE UNITED STATES 

appointed by the President with the advice and consent 
of the Senate. Their inclusion will require additional 
legislation.^ 

Examina- The act of 1883 provided that the examinations should 

be practical in their character and, as far as possible, relate 
to the duties of the position to be filled. The examina- 
tion papers are prepared and corrected in the Washington 
office of the commission. The examinations are carried 
on by local boards of examiners, of which there are more 
than 2000, made up of federal officials detailed for the 
purpose. In order to have effective supervision over the 
conduct of these examinations and to carry on the details 
of the work of the commission, the country is divided into 
twelve districts, in charge of each of which is a district 
secretary. In the case of those positions for which an edu- 
cational examination is not necessary, the whole matter 
is attended to in the district. In addition to the usual 
examinations which open the way to positions of a lower 
grade, examinations are also given for positions requiring 
unusual training ; for example, chief mechanical engineer 
in the Bureau of Mines, chief of drainage investigations 
in the Department of Agriculture, etc. These examina- 
tions consist largely of information concerning the train- 
ing and experience of the candidate. They are also tested 
with regard to their attainment in their particular field 
by expert examiners outside the government service. 

Whenever a vacancy occurs in the civil service, the 
commission is required to certify to the appointing officer, 
who is usually the head of the department, the names of 

^ In 1 91 3 three very distinct backward steps were taken by Congress. 
The law of that year for the administration of the income tax left the em- 
ployees necessary for its enforcement to be appointed without competitive 
examination. Another act exempted deputy collectors of internal revenue 
and deputy United States marshals from competitive examinations, and a 
third statute provided for the appointment of the employees of the Federal 
Reserve Board without regard to the act of 1885. 



CIVIL SERVICE OF THE UNITED STATES 303 

the three persons who stand highest on the Hst of those Appoint- 
who have passed the examinations. From these he makes °^®^*^ 
the appointment. In case he can show vahd objection 
to all three of them, another three may be certified. Of 
course, it sometimes happens that there are not three 
persons on the eligible list to be certified, and in certain 
cases the principle of a competitive examination has to 
be abandoned in order to find a person to fill the position. 
In this case a simple pass examination is all that is required. 
A complication is introduced into the system by the fact 
that the law requires that appointments in the Washing- 
ton departments must be apportioned among the several 
states in accordance with their population. This has 
been done as nearly as may be, but many of the distant 
states frequently fail to furnish eligibles enough to fill 
up their quotas. 

Persons within the classified service hold office during Tenure of 
good behavior. They may be removed only "for such °™^® 
cause as will promote the efficiency of the service." The 
reasons must be stated in writing, and the person whose 
removal is sought must have notice and an opportunity 
to defend himself. The discretion, however, of the ap- 
pointing officer in making removals is absolute and there 
is no appeal from his decision. This is a valuable factor 
in preserving the discipline of the service. 

Very strict provisions are made by law and by executive Non-parti- 
order against a member of the civil service soliciting or ^anship 
making a campaign contribution. It is a crime for any 
officer of the United States to discharge, promote, degrade, 
or threaten to do any of these things to a member of the 
civil service for failure to make a campaign contribution.' 
Rule I, of the Civil Service Rules, promulgated by the 
President, provides "that no person in the Executive 
Civil Service shall use his official authority or influence 



304 



GOVERNMENT OF THE UNITED STATES 



Effect of the 
competitive- 
examination 
system 



Criticism of 
the system 



for the purpose of interfering with an election or affecting 
the results thereof. Persons who by the provisions of 
these rules are now in the competitive classified service, 
while retaining the right to vote as they please and to 
express privately their opinion on all political subjects, 
shall take no active part in the management of any political 
campaign." 

The institution of the system of competitive examina- 
tions as the only means of securing appointment to a 
large majority of positions in the service of the United 
States has accomplished great good. It has removed an 
onerous burden from the shoulders of the President and 
the heads of the departments and left them greater liberty 
to attend to more important matters. It has raised the 
tone of politics and greatly increased the efficiency of the 
various departments.^ 

Various criticisms have been directed at our system 
of competitive examinations. The most common is that 
the passage of the competitive examination does not prove 
the capacity of the individual to perform important duties. 

1 The report of the United States Civil Service Commission for the year 
ending June 30, igi2, gives the following table with regard to the effect of 
the merit system upon the Internal Revenue Service : 



Total collections ■ 

Total expenses 

Cost of collection per $100 

Nimiber of deputy collectors employed .... 

Nimiber of clerks employed 

Number of messengers employed 

Salaries paid deputy collectors, clerks, and 

messengers 

Nvmiber of gangers, storekeepers, and 

store-gaugers 

Number of gallons gauged 



Fiscal Year 


Fiscal Year 


ENDED June 


ENDED June 


30, 1912 


30, 1896 


$321,615,894 


$146,830,615 


$5,509,983 


$4,086,292 


$1.71 


$2.78 


1,257 


962 


129 


185 


14 


27 


$1,818,239 


$1,504,186 


2,r72 


2,551 


544,020,347 


269,334,762 



CIVIL SERVICE OF THE UNITED STATES 305 

This must be acknowledged to be a fact. It is true, how- 
ever, that a person who can pass a competitive examina- 
tion is more Ukely to be able to perform important duties 
than one who cannot. To leave appointments to the 
discretion of the appointing officers would be to go back 
to the old "spoils system." The most serious criticism 
of the present situation is that the higher positions, such 
as first, second, and third class postmasters, collectors, 
and other chief officers of customs and internal revenue, 
district attorneys, marshals, and the heads of bureaus in 
departmental service are not included in the classified 
service. The fact that these positions are not filled by 
promotion within the service deters the really ambitious 
young man from entering the competitive examinations. 

Still another defect is the lack of any provision for pen- Need of civil 
sioning those government employees who have grown too P®"-'Sions 
old to render efficient service. At present they can only 
be disposed of by removal, which is a barbarous way of 
treating a faithful employee, or by reduction in salary 
and grade, which, to quote the Quartermaster-general in 
his report for 1905, is so disheartening to them as to 
render nugatory their services after such action. Presi- 
dent Taft, in his annual message of 191 2, recommended the 
extension of the classified service to include all higher 
local positions now filled by the President with the advice 
and consent of the Senate, and the establishment of a 
system of civil pensions.^ 

1 The Civil Service Commission in the report above referred to declares : 
"As long as so large a proportion of the higher administrative positions re- 
main unclassified, to be filled from the outside, without promotion, the 
classified service will not offer a career in competition with such outside 
fields of employment as are organized and conducted upon a merit basis, 
and which have systems of retirement upon disability or superannuation. 
In this respect the civil service remains inferior to the service of many busi- 
ness establishments which assure prompt promotion for merit to the high- 
salaried positions and which give retiring allowances, and the government 



3o6 GOVERNMENT OF THE UNITED STATES 

SUGGESTIONS FOR FURTHER STUDY 

The reports of the United States Civil Service Commission will 
be found the best source of up-to-date information available. The 
publications of the National Civil Service Reform League contain 
much matter of importance. Obtain if possible examinations used 
in filHng positions of various sorts, and the civil service law of your 
state or city. 

Beard, pp. 222-230, will be found very useful; Readings, pp. 
206-213. Bryce, ch. Ixv, gives a brilliant account of the spoils 
system. Hart, A. B., Actual Government, pp. 276-294, will be found 
valuable, as will Reinsch, P. S., Readings in American Federal 
Government, ch. xii, and Finley and Sanderson, American Execu- 
tive and Executive Methods, pp. 246-266. On the subject of the 
higher positions see Reed, pp. 194-214. 

For teachers : see Lowell, A. L., Governm^ent of England, vol. i, 
pp. 145-194, for English civil service system. Goodnow, F. J., 
Comparative Administrative Law, vol. ii, pp. 29-61, gives American, 
EngKsh, and German systems. Fish, C. R., Civil Service and the 
Patronage; Foltz, E. B., The Federal Civil Service. For comparison 
with English system see Lowell, A. L., Colonial Civil Service, and 
Moses, R., The Civil Service of Great Britain. 

Topics : 

English vs. American Methods of Civil Service Examination. 

Examination for Post Ofi&ce Clerk and Similar Positions. 

Consular Examinations. 

Civil Service Pensions. 

Growth of the Classified Service. 

Political Activity in the Classified Service. 

Backward Steps in 1913. 

Civil Service Pensions. 

Extension of Civil Service Examinations to Higher Positions. 

cannot hope to secure and retain the services of an equally intelligent and 
ambitious class of persons while these conditions exist. The fact that 
higher positions are not open to promotion deters many of the better class 
of men from entering the examinations for appointment." 



CHAPTER XXVI 
TERRITORIES AND DEPENDENCIES 

Article IV, Section 3, of the Constitution of the Power of 
United States gives Congress the ''power to dispose of ^^t^^/^^ 
and make all needful rules and regulations respecting acquire and 
the territory or other property belonging to the United f°^^5". 
States." It did not, however, expressly grant any power 
to acquire territory. As a result, Jefferson, who as we 
know was a strict constructionist, felt that he was violat- 
ing the letter of the Constitution in making the great 
Louisiana Purchase, and urged Congress to submit an 
amendment covering the matter. This Congress neglected 
to do, but it has since come to be generally believed that 
the United States, like every other country, has inherent 
in its very national existence the right to acquire terri- 
tory by conquest, purchase, or otherwise. 

The only serious question which has arisen has been as Does the 
to whether the power of Congress to govern territories foUo\v the°^ 
is limited by the provisions of the Constitution protecting flag ? Early 
private rights. In the famous Dred Scott Case, Chief ^*®^ 
Justice Taney declared that it was. He deduced from 
this the conclusion that Congress could not forbid slave- 
holders to take their slave property into any of the ter- 
ritories. As late as 1897 the Supreme Court held (Spring- 
ville vs. Thomas, 166 U.S. 707) that Congress could not 
do away with the requirement of a unanimous verdict in 
the jury trial guaranteed by the Seventh Amendment. 

With the acquisition of Hawaii, Porto Rico, and the 
Philippines, the court was obliged to modify its opinion. 
These possessions were already fully peopled by persons 

307 



3o8 



GOVERNMENT OF THE UNITED STATES 



Does the of other races and traditions. It was clearly impossible 
frT^^^ttf^^^ to apply to them jury trials and the other judicial formali- 
flag? Pres- ties guaranteed by the Bill of Rights. The Supreme 
ent view Court, therefore, in the celebrated Insular Cases, stretched 
the letter of the Constitution rather violently by drawing 
a distinction between those rights which are "funda- 
mental," such as the right to freedom of worship, and 
those which are merely ''formal," such as the right to a 
jury trial. It declared that the ''fundamental" rights 
were the only portions of the Constitution which auto- 
matically extend to acquired territory. Otherwise the 
power of Congress to legislate for any territory coming 
into the United States' possession is absolute. The re- 
mainder of the Constitution and the general statute law 
of the United States go into force in the territory only 
by Act of Congress. Where territory is acquired by con- 
quest, the President governs it as the commander in chief 
of the army until Congress chooses to legislate concern- 
ing it. 

The vast territory on the mainland of North America, 
all of which has now been made into states of the Union, 
came into the possession of the United States practically 
uninhabited. Its location adjacent to the already popu- 
lated portions of the country insured its filling up with 
people from the older states. It was always governed, 
therefore, with an eye to its creation into states. The 
people of the older territories,^ except tribal Indians, were 
regarded from the first as citizens of the United States, 
and they were given, as soon as possessed of sufficient 
population to warrant it, self-governing institutions as 
similar as might be to those of the states themselves. 

The type of territorial government upon which all the 
rest have been modeled was established by the celebrated 

^ Including Hawaii and Alaska. 



The conti- 
nental ter- 
ritories 



TERRITORIES AND DEPENDENCIES 309 

Northwest Ordinance of 1787. This provided that the 
territory should be governed for the time being by a gov- 
ernor, a secretary, and three judges, appointed at first 
by Congress and afterwards by the President of the 
United States. As each succeeding territory was erected, 
this same form of government was at first provided for it. 
The Northwest Ordinance further provided that as soon 
as there were 5000 male inhabitants of full age in the 
territory, a representative form of government was to 
be established. The governor was still to be appointed 
by the President, but the lower house of the legislature 
was to be elected by the people of the territory and the 
upper house was to be chosen from a list submitted by 
the lower. In each of the other continental territories 
a representative legislature was established as soon as 
possible, and except for the fact that the governor and 
judges continued to be appointed by the President, the 
government of a territory was made as much like that of 
a state as might be. It is to be observed that the govern- 
ment of a territory was organized on the same principle 
as were the governments of the thirteen colonies before 
the Revolution, i.e. a popularly representative legislature 
and executive appointed by the '^mother country." The 
conflicts of the colonial period were escaped simply be- 
cause the President usually selected as governor an in- 
habitant of the territory agreeable to the leaders of his 
party in that territory. 

Of the two remaining territories, Hawaii and Alaska, Hawaii 
the more highly developed government is possessed by 
Hawaii. The legislature is composed of two houses, known 
as the "senate" and the "house of representatives." 
The senate consists of fifteen members, elected for a term 
of four years. For this purpose the islands are divided 
into four districts, each of which elects from two to four 



3IO GOVERNMENT OF THE UNITED STATES 

senators according to population. The house of repre- 
sentatives has thirty members, elected every two years 
from six districts returning from four to six representatives. 
The most significant feature of the government of the 
territory is the provision with regard to the elective fran- 
chise. In order to vote, one must be a male citizen of 
the United States, twenty-one years of age, have resided 
in the territory one year and in the district three months, 
be registered, and be able to read or write either the 
English or the Hawaiian language. This last provision 
was intended to eliminate the Chinese and Japanese, of 
whom there are large numbers in the islands. 

Alaska Alaska has had a representative legislature only since 

1 91 2. One of its first acts was to extend the suffrage to 
women. The power of the governor and the legislature 
is more limited than in Hawaii or the older territories, 
because of the considerable number of the functions of 
government which are administered directly from Wash- 
ington. The War Department, for example, has power 
to erect telegraph lines and so controls this means of 
communication. The schools for natives are directly ad- 
ministered by the Bureau of Education. This bureau has 
been charged with the task of introducing and managing 
herds of reindeer for the benefit of the Alaskans. All 
together. Congress has so far failed adequately to provide 
for the government of Alaska. 

Porto Rico The island of Porto Rico was acquired from Spain as 
a result of the war of 1898.^ The problem of applying 
American ideas of government to such a thickly settled 
community, with four hundred years of Spanish traditions 
behind it, was, of course, a matter of great difficulty. 
The Porto Ricans were not admitted to American citizen- 



1 It is an island claiming an area of 3600 square miles and had in 1910 a 
population of 1,118,000, of which sixty-five and one half per cent was white. 



TERRITORIES AND DEPENDENCIES 311 

ship, although they owe allegiance to the United States. 
An act adopted in April, 1900, provided for a governor to 
be appointed by the President, by and with the advice 
and consent of the Senate, for the term of four years. It 
also created six other officers, similarly appointed : secre- 
tary, attorney-general, treasurer, auditor, commissioner of 
the interior, and commissioner of education. Each of 
these officers is at the head of the department of govern- 
ment indicated by his title. With five other persons ap- 
pointed by the President and the Senate, they constitute 
the upper house of the Porto Rican legislature, which is 
known as the executive council. At least five members of 
the council must be native inhabitants of the island. Up 
to the present time the practice has been followed of filling 
the six important executive positions with Americans, and 
naming Porto Ricans for the five other places. The 
house of delegates, as the lower house of the legislature 
is called, consists of thirty-five persons, who are elected 
by districts every two years. The act of 1900 gave to the 
Porto Rican legislature the power of determining the 
franchise. This was finally so arranged, in 1904, that 
all male persons twenty-one years of age or over, who 
have resided in the island one year and in the municipal 
district six months, should have the right to vote. It 
was further provided that no person could acquire the 
right to vote after July i, 1906, unless he could read or 
write either English or Spanish. There had been some 
conflict between the native lower house and the executive 
council, which reached a critical stage in 1908, when the 
house of delegates endeavored to block the passing of the 
budget. To avoid further difliculty of this kind, Congress 
passed a law providing that if in any year the budget is 
not adopted, the budget arrangement of the preceding 
year will hold good. 



312 GOVERNMENT OF THE UNITED STATES 



The 

Philippine 

problem 



Develop- 
ment of 
American 
adminis- 
tration 



The Philippine Islands, likewise acquired from Spain 
as a result of the war of 1898, have a gross area of 115,000 
square miles, and in accordance with an enumeration 
made by the War Department in 1903, a population of 
7,635,000, of whom 7,539,000 belong to the brown native 
races of the islands. Of the remaining, 42,000 belong to the 
yellow race, 24,000 are negritos, 15,000 are of mixed 
blood, and only 14,000 are white; 461,000 are classified 
by the War Department as ''wild," that is, as belonging 
to uncivilized tribes. The difficulty of governing the 
Philippines with their nearly eight millions of people of 
various oriental races, many of them savages and a large 
proportion of very primitive civilization, is tremendous. 
This fact, together with their exceedingly backward state 
of development under Spanish rule, should be remembered 
in estimating the work of the United States in the islands. 
It will not do to become impatient with the present 
status of the Filipino or cavalierly to say, "A plague on 
this possession ! Let it go." 

After the occupation of Manila on August 13, 1898, 
such parts of the islands as were under the control of the 
United States were placed under military government. 
This period of military occupation was somewhat pro- 
longed by the revolt against American rule, led by Agui- 
naldo and other Filipino "patriots." In the meantime, 
however, the President had appointed, on January 20, 
1899, what is known as the First Philippine Commission. 
Its purpose was to investigate the conditions there and 
to recommend steps which should be taken toward the 
establishment of a civil administration. A preliminary 
report was made on November 2, 1899, and in the follow- 
ing March the President appointed a second commission, 
which consisted of William H. Taft as president, and four 
other members. The instructions to this commission. 




The insular possessions of the United States. Porto Rico and the Hawaiian 
Islands have here been drawn to the same scale as the Philippine Islands, for 
purposes of comparison. 



TERRITORIES AND DEPENDENCIES 313 

which were also embodied in the annual message of Presi- 
dent McKinley to Congress in December, 1900, laid 
down the policy of the United States with regard to the 
government of dependencies. The commission was told 
to "bear in mind that the government which you are 
establishing is designed not for the satisfaction or the 
expression of our theoretical views, but for the happiness, 
peace, and prosperity of the people of the Philippine 
Islands." This commission took up the reins of govern- 
ment on September i, 1900. It was not, however, until 
the 4th of July, 1901, that the military governor handed 
over to Mr. Taft complete executive authority in civil 
affairs, in accordance with the order of the President 
designating him as civil governor of the Philippines. By 
the order of the President, on September i, 1901, three 
Filipino members were added to the commission. The 
last stage in the development of their present form of 
government was the opening on October 16, 1907, of the 
first representative assembly for the Philippines. 

At the head of the administration of the Philippines Present gov- 
is a governor appointed by the President, by and with ^f^^^* 
the advice and consent of the Senate. There are four Philippines 
great executive departments : interior, commerce and 
police, finance and justice, and public instruction. The 
secretary who has charge of each of these departments 
is appointed by the President and Senate. These secre- 
taries, together with the governor, and with four other 
persons similarly appointed, constitute the Philippine 
Commission. Besides performing important executive 
work, this body constitutes the upper house of the Phil- 
ippine legislature. The lower house of the assembly con- 
sists of eighty members elected from that portion of the 
islands not occupied by wild or non-Christian tribes. In 
order to vote, one must be twenty-three years of age, either 



314 GOVERNMENT OF THE UNITED STATES 



Success of 
American 
govern- 
ment in the 
Philippines 



a property owner, a taxpayer, or able to read, write, or 
speak English. Unlike Porto Rico, the headship of the im- 
portant departments has not been confined to Americans. 
The policy of the Wilson administration has been to give 
the Filipinos a majority in the commission. There is 
here that same opportunity for discord between governor 
and legislature which resulted in the independence of the 
thirteen colonies and nearly destroyed the whole English 
colonial empire. Only good judgment and tact have, 
hitherto, prevented serious trouble. The judiciary con- 
sists of justices of the peace, courts of first instance, and 
a supreme court. The latter is composed of seven mem- 
bers, both Americans and Filipinos, appointed by the 
President. In each of the several provinces there is a 
provincial board of three members, the governor and 
third member elected by the voters and the treasurer 
appointed by the governor-general. The municipalities, 
which are territorial units like the town of New England 
and include several barrios or villages, are administered 
by a president, a vice-president, and a council, elected 
by the people. 

American rule in the Philippines has been able to ac- 
complish the complete pacification of most of the area 
contained in the islands. Peace and the orderly ad- 
ministration of justice have done much to promote the 
prosperity of the country. Important public works, 
such as the building of roads, etc., have also contributed 
to this result. Modern methods of hygiene and sanita- 
tion have been applied to the advantage of the people. 
Perhaps the most remarkable achievement, however, is that 
of the bureau of education. At the outset a large number 
of teachers were imported from the United States, and a 
very thoroughgoing school system was established, reach- 
ing practically every corner of the islands. This diffusiou 



TERJU TORIES AND DEPENDENCIES 315 

of knowledge has already had a pronounced effect in im- 
proving the naturally high intellectual capacity of the 
Filipino. The ideals of modern civilization and American 
government have been spreading everywhere. 

The acquisition of the Philippine Islands met with 
earnest protest from a considerable portion of the Ameri- 
can people, who believed that the United States had no 
moral right to secure and hold subject territories which 
in the nature of things could never become states of the 
Union. This became more intense with the necessity 
of putting down the rebellion already referred to. The 
Democratic party took the matter up, and made it an 
issue in the campaign of 1900. Its platform for that 
year suggested that we should announce our purpose '^ to 
give to the Philippines, first, a suitable form of govern- 
ment ; second, independence ; and third, protection from 
outside interference." In 191 2 the same party advocated 
granting independence to the Philippines ''as soon as a 
suitable government can be established." Of course 
few believe that the time has actually come to give the 
Philippines their independence. There are also but few 
people who believe that the United States should forever 
hold them in subjection. The difference in opinion be- 
tween the Democratic and Republican party, for example, 
is with regard to the duration of time of our guardianship. 
Those who know most about the Philippine Islands assert 
confidently that there is no prospect that the Philippines 
will be in a position in the immediate future to govern 
themselves as an independent nation. They almost uni- 
formly deplore the possibility of the work already done 
being destroyed by premature abandonment of our con- 
trol. The steps which have been taken toward putting 
the Philippine Commission in the hands of the Filipinos 
are probably very much in advance of what their capacity 



3i6 GOVERNMENT OF THE UNITED STATES 



Other pos- 
sessions 



Part of the 
Secretary 
of War 



District of 
Columbia 



for self-government entitles them to. The fate of the 
small nations in the European War of 19 14 has done much 
to modify the Filipino desire for independence itself. 

Of the remaining possessions of the United States, the 
Panama Canal Zone is the most important. Under the 
act of August 24, 191 2, this zone is now governed by a 
governor appointed for four years by the President and 
the Senate. The other officers are either appointed di- 
rectly by the President or are under the authority of the 
governor and hold office at his pleasure. The island of 
Guam, secured from Spain in 1898, has never been sub- 
jected to congressional legislation. It is governed by the 
naval officer in charge of the naval station there. Pago 
Pago, the Tutuila naval station in the Samoan group, is 
likewise in the hands of a naval officer. 

For the purpose of administrative control, the Philip- 
pine Commission, the government of Porto Rico, and the 
government of the Canal Zone are placed in the hands of 
the Secretary of War, who is charged with their general 
supervision. All large matters of policy relating to our 
dependencies are, of course, determined by the President 
or by the President with the advice of the Cabinet. Small 
matters and matters of detail, including correspondence, 
are handled by the Secretary of War through the Bureau 
of Insular Affairs. The reports of the Philippine Commis- 
sion, the government of Porto Rico, and the government 
of the Canal Zone are made to the Secretary of War, and 
are published by him in the reports of the War Depart- 
ment for each year. 

The District of Columbia was originally a square block 
of territory containing one hundred square miles, ceded 
by Maryland and Virginia in 1790. The territory on the 
Virginia side of the Potomac was retroceded to that state, 
so that the District now consists of about seventy square 



TERRITORIES AND DEPENDENCIES 317 

miles on the north bank of the river. Various forms of 
government for the city of Washington and for the Dis- 
trict as a whole were tried by Congress, but in 1874, as 
a result of the extravagance of the local government of 
the District, Congress took into its own hands all legis- 
lative and financial powers. The executive management 
of the District was vested in a board of three commis- 
sioners appointed by the President. Two of these com- 
missioners are civilians, and the third is an army engineer 
assigned to this particular duty. The various matters 
of administration are distributed among them in much 
the same way as in the "commission" form of city govern- 
ment, which we have already discussed. Indeed, the gov- 
ernment of the District of Columbia was one of the models 
which the framers of the Galveston charter had before 
them. The division into departments, as in Galveston, is 
for convenience only, the final decision in all matters resting 
with the board. Under this board the government has 
been economical and efficient. It is probable that with 
the discovery of decent forms of representative city gov- 
ernment, control over the municipal affairs of the District 
would have been restored to the people were it not for 
the complicating question of negro suffrage. Washing- 
ton is a Southern city and contains a very large proportion 
of negro inhabitants. It would be extremely distasteful 
to the white population if these negroes were allowed to 
vote. It is probable, too, that their general ignorance 
would make their admission to the franchise undesirable. 
On the other hand, in the face of the Fourteenth and 
Fifteenth Amendments to the Constitution, the United 
States Congress could not consistently discriminate 
against them. 



31 8 GOVERNMENT OF THE UNITED STATES 

SUGGESTIONS FOR FURTHER STUDY 

The only comprehensive account of the matters covered in this 
chapter is to be found in Willoughby, W. F., Territories and De- 
pendencies of the United States, a work which is somewhat out of 
date. Bryce, ch. xlvii, and Beaed, pp. 417-427, will be useful. 
Barrows, D. P., ^ History of the Philippines and A Decade of 
American Government in the Philippines, gives a historical narrative 
of the islands under Spain and under the United States. Beard, 
Readings, pp. 375-390, contains some very valuable original sources. 
The Ordinance of 1787 may be found in Macdonald, W., Select 
Documents Illustrative of United States History, pp. 21-29. 

For teachers, the reports of the War Department containing the 
reports of the various departments of the Philippine and Porto 
Rican governments and the acts of the Philippine Commission and 
legislature will be found to contain the bulk of the official material 
relative to the administration of these possessions. The famous 
Insular Cases have been collected and published in House Document 
No. 509, 56th Congress, 2d Session. The most elaborate work on the 
Philippines is that of Worcester, Dean C, The Philippines, Past 
and Present (19 14 edition). See also Farrand, Max, Legislation of 
Congress for the Government of the Organized Territories of the United 
States ; American Colonial Policy and Administration, Annals of the 
American Academy, July, 1907, p. 46; Fisher, H. W., Principles 
of Colonial Government; Coolidge, A. C, The United States as a 
World Power; and Latane, J. H., America as a World Power, which 
treat of our dependencies from different angles. 

Topics : 

The Continental Territories of the United States. 

The climate, population, and resources of Alaska and of each of 
our insular possessions. 

It is suggested that a very profitable class exercise would be a 
debate on the question, " Resolved, That the United States should 
at once relinquish her control of the Philippines. ' ' Ample current 
periodical literature is available in addition to the references 
given herewith. 



PART VI 
THE FUNCTIONS OF GOVERNMENT 



CHAPTER XXVII 

FOREIGN RELATIONS AND NATIONAL DEFENSE 

The first function of government, historically speaking, Develop- 
was that of national defense. With the development af ^^^^f. 
civilized states this function has come to be intimately tional 
connected with the conduct of those relations which one u^t^d"^ ° 
people sustain toward another. National defense is as States 
much a matter of fair, firm, and tactful deahng with for- 
eign countries as it is of armies and navies. The United 
States has been pecuharly happy in her foreign relations 
because of her position on the American continent, far 
removed from the maelstrom of European pohtics. Fully 
occupied with the development of her own matchless 
resources, she has had Httle occasion to mingle in the 
relations of the so-called "world powers." It has been 
easy for her to avoid the ''entangling alliances" against 
which Washington directed his solemn warning. Secure 
from attack, she has been able to avoid the diplomatic 
perplexities and costly armaments which plague the 
countries of Europe. Nevertheless, the United States 
has not been able to avoid international comphcations 
and has on three occasions been drawn by them into 
war. The period of our isolation is now practically at an 
end. The foreign commerce of the United States, for the 
protection of which the War of 1812 was fought, has by 
its expansion, especially since the opening of the twentieth 
century, brought us into closer and closer contact with the 
nations of the world. The European War of 19 14, with 
its defiance by both parties of the rights of neutral com- 
merce, has only just failed to draw us into its vortex. 
The Far Eastern possessions which the war with Spain 

321 



322 THE FUNCTIONS OF GOVERNMENT 

cast into our hands have brought us into a whole new 
field of international relations in the Orient. At the same 
time the growth in power and ambition of the Empire of 
Japan has created for us a neighbor on the Pacific whose 
pride we may wound and whose interests we may thwart.^ 
Finally, the peculiar relation which we have assumed 
toward the other republics in this hemisphere involves 
us in more and more threatening responsibilities toward 
them and toward the world. 
The Monroe The Monroe Doctrine, the great central fact of our 
Doctnne diplomacy, arose out of the proposal of the so-called 
*'Holy Alliance" to assist Spain in reconquering her 
revolted American colonies. In his message to Congress 
in December, 1823, President Monroe declared: "With 
the existing colonies or dependencies of any European 
power we have not interfered and shall not interfere. 
But with the governments who have declared their inde- 
pendence and maintained it, and whose independence 
we have on great consideration and just principles ac- 
knowledged, we could not view any interposition for the 
purpose of oppressing them or controlling in any other 
manner their destiny by any European power in any 
other light than a manifestation of an unfriendly disposi- 
tion toward the United States." The purport of this 
doctrine has expanded with its frequent reassertions. It 
is now a well-established principle that the United States 
will not permit a European power to deprive any one of 
her Latin-American sisters of territory or of self-govern- 
ment. This does not mean that the United States guar- 
antees them against other forms of punishment. She 
will, however, certainly look askance on any punitive 
expedition which would involve even the temporary 

^ Witness the anti-alien land legislation demanded almost unanimously 
by the people of California. 



FOREIGN RELATIONS AND NATIONAL DEFENSE 323 

occupation of territory. Territory once occupied at the 
cost of bloodshed is hard to surrender. A necessary 
corollary of the position of the United States is that she 
must assume responsibihty before the world for the 
conduct of the unruly states of North and South America. 
She must answer to the great powers for the injuries they 
or their subjects suffer at the hands of Latin-American 
governments. She must, under proper circumstances, 
even intervene to secure the peace and order and protec- 
tion to Hfe and property which backward, revolution- 
rent lands are not able to give. 

The general conduct of foreign relations is in the hands The general 
of the President, who always acts, however, through the l^^^^^ ° 
Secretary of State. We have discussed the power of the relations 
Senate with regard to the ratification of treaties. The 
President, however, has a perfectly free hand in negotia- 
tions of treaties and in the conduct of ordinary foreign rela- 
tions. The President may consult, and as a matter of fact 
he frequently does, the chairman of the Foreign Relations 
Committee and other leading members of the Senate, but 
this is purely voluntary on his part. The noisy criticism of 
congressmen or even the action of the two houses cannot 
alter his course if he is determined to stick to it. Unless, 
indeed, opposition reaches the point of impeaching him, he 
can go forward unhindered until he has a treaty to ratify. 

The United States is represented before every impor- Diplomatic 
,. , . , ^. r r representa- 

tant government by diplomatic representatives ot one ot ^^^^ 

the following grades : 

(i) Ambassador extraordinary and plenipotentiary. 

(2) Envoys extraordinary and ministers plenipotentiary. 

(3) Ministers resident. 

(4) Charges d'affaires.^ 

1 Ambassadors are sent to countries which send representatives of like 
grade to us. Charges d'affaires are persons temporarily in charge pending 
the arrival of an ambassador or minister. 



324 



THE FUNCTIONS OF GOVERNMENT 



Appoint- 
ments, 
Balaries, etc. 



The duties of these officers are to cultivate the friend- 
ship of the government to which they are accredited and 
its officials. They care for every species of American 
interest, from the most important treaty negotiations to 
securing, for traveling Americans, presentation at 
court. Diplomatic representatives do not play as im- 
portant a part as they did before the days of the ocean 
cable. In important matters they act now mostly on 
instructions from home. Further, the most important 
negotiations, such as treaties of peace, are usually the 
work of special commissioners appointed for the purpose. 
A diplomatic representative must be recalled at any 
time when he becomes persona non grata to the govern- 
ment to which he is accredited.^ 

The diplomatic service in European countries is a 
definite career to which young men commit themselves, 
knowing that they may, on the basis of their merit, be 
ultimately promoted to the highest positions. All diplo- 
matic appointments in this country were formerly the 
reward for political services. Since 1905 secretaries of 
legations have ?jeen appointed by promotion or on the 
basis of an examination. This was an important step in 
the right direction. Our ambassadors and ministers are 
paid small salaries in proportion to the state they are 
expected to maintain. In only a very few instances does 
the United States provide an official residence. The result 
is that the more important embassies can be assigned 
only to rich men. This is unfortunate for the quality of 
the service and distinctly undemocratic in its tendencies.^ 

1 Note the case of Dumba, Austrian ambassador to the United States 
in igis. 

2 It is only a few years since I'resiflent Kliot of Harvard was forced 
to decline the ambassadorship to fireat liritain because he was a [xjor man. 
One of our ablest dif)lomat.s, iJavid Jayne Hill, was recalled from (iermany 
at the request of that government because he could not live in the manner 
of other ambassadors. 



FOREIGN RELATIONS AND NATIONAL DEFENSE 325 

At every important port in the world the United States Consular 
is represented by a consul.' The consul performs a wide ^®'^*^® 
variety of functions connected with the encouragement 
of American commerce. He certifies invoices of goods to 
be exported to the United States and assists the customs 
officers in securing a correct valuation of all goods. He 
is expected also to make a special study of the industrial 
and mercantile conditions existing in his district. He 
has power in disputes between seamen and shipmasters 
and is charged with the care of destitute American seamen. 
His duties are minutely prescribed in the three thousand 
and more paragraphs of the Consular Regulations. Since 
1906 admission to the service has been by competitive 
examinations, and the higher positions have been filled 
by promotion within the service or by appointing a person 
who has passed special examinations showing him to be 
qualified for the work. 

The great body of rules and principles, sometimes interna- 
embodied in treaties and judicial decisions, but even t^o^^^ ^^^ 
more frequently in the practice of nations as expressed 
in the textbooks of learned authors, is international law. 
Some of its principles are a bit hazy, and only a few of 
them have behind them the sanction of force which makes 
effective our domestic law. Still, it is a good deal more 
than a mere statement of how nations ought to behave if 
they would. Even in the utmost bitterness of war its 
precepts are invoked to mitigate the savagery of the con- 
flict. There is no doubt that the judicial settlement of 
disputes between nations, or arbitration, will be more and 
more used in place of force or the threat of force which 
lies behind most diplomacy. The excessive horrors of 

1 There are also consuls-general-at-large who are traveling inspectors 
of consulates, and consuls-general who are in charge of the consular work 
in whole countries. 



ness 



326 THE FUNCTIONS OF GOVERNMENT 

the European War of 19 14 have strongly enforced this 
truth. We may be proud of the fact that the United 
States has taken the lead in extending the principle of 
judicial settlement by her numerous arbitration treaties. 

Prepared- When all means of honorable conciliation fail, our 

country, hke any other, may be obliged to defend its 
interests and its territory from attack. Throughout our 
whole national existence prior to the date of this publi- 
cation we have rested on the protecting breadth of the 
ocean that rolls between us and our nearest possible foes. 
We have maintained a small standing army and have in 
recent years developed a navy which ranked before the 
war of 1 9 14 third among the navies of the world. For 
the first time in our history the impression has become 
general that we are inadequately prepared for defense. 
We have learned that we are not absolutely immune from 
possible attack, and while few are alarmists enough to 
fear the ultimate victory of any antagonist, we all recog- 
nize that an aggressive foe might do us hideous damage. 
As this book goes to press the plans for an increase in our 
military and naval forces are receiving the consideration 
of Congress. It would be futile to describe in a work of 
this character the various conflicting measures which are 
being debated. All that we can do here is to lay down the 
principle upon which any scheme of ^'preparedness" is 
to be criticized : it must be adequate for defense but not 
so great as to tempt to aggression,^ 

Military and For the purpose of training officers for the army and 
navy, the United States maintains the military academy 
at West Point and the naval academy at Annapolis.^ 
There is one cadet at West Point from each congressional 

1 Organization of war and navy departments has been outlined in Chapter 
XXIV. 

2 The provision for the training of ojfficers described in the text is now 
considered to be inadequate, and Congress is considering the enlargement 



naval 
education 




West Point cadets at dress parade on the drill ground of the military academy. 




Midshipmen at the naval academy at Annapolis marching to the dining hall. 



FOREIGN RELATIONS AND NATIONAL DEFENSE 327 

district, two from each state and the District of Columbia, The 
one from each territory, and forty from the United States ^'^'^^^y 
at large. When a vacancy occurs the representative, 
senator, or delegate from the district, state, or territory 
in question — or, in the case of the cadetships assigned 
to the District of Columbia and the United States at 
large, the President himself — recommends a candidate. 
This candidate must be between the ages of seventeen 
and twenty-two and must pass severe physical and mental 
examinations. Many representatives and senators, to 
avoid the embarrassment of selecting a candidate from 
a long list of apphcants, conduct a competitive examina- 
tion of their own, giving the coveted recommendation to 
the one who receives the highest grade. The superinten- 
dent of the academy, who holds the rank of colonel of 
engineers, is assigned to that duty by the President. 
Instruction is given by a corps of mihtary and civiHan 
professors. The course is a thorough one, embracing a 
great deal of mathematics, mihtary science, modern 
languages, etc. The graduates of the academy enter the 
army as second heutenants. When the number of grad- 
uates is insufficient, as it always is in time of war, officers 
are advanced from the rank of non-commissioned officers 
or are appointed directly from civil life. 

Each senator, representative, and delegate in Congress The naval 
is entitled to two midshipmen in the naval academy, academy 
The President names two from the District of Columbia 
and five from the country as a whole. The same sort 
of mental and physical tests are applied to each candidate 
as in the case of the military academy. After four years 
at the academy and two years at sea, the midshipman 
receives the rank of ensign. At all of the '4and grant" 

of the student bodies at West Point and Annapolis and the establishment 
of other similar institutions. 



328 



THE FUNCTIONS OF GOVERNMENT 



Military 
justice 



Martial law 
and the 
citizen 



colleges military drill is required of all students in the first 
and sometimes in the second year. The United States 
assigns an officer of the regular army as instructor. Naval 
training schools for non-commissioned officers are main- 
tained at several stations. Both the army and navy now 
provide summer instruction for high school and college 
students in special camps and vessels. A naval war 
college is maintained at Newport and army war colleges at 
Washington, D.C., and Leavenworth, Kansas, for the 
special training of certain selected officers. 

Offenses committed by soldiers or sailors against the 
elaborate regulations for the government of the army 
and navy which have been made by Congress, and the 
numerous rules laid down by the Army and Navy de- 
partments, are investigated by courts-martial. These 
courts do not belong to the federal judiciary, and are not 
limited by the provisions of the Constitution with regard 
to trial by jury, etc. Their decisions are reviewed by 
officers of the judge advocate-general's department, and 
are subjected to the final approval of the Secretary of 
War. The ordinary courts have no jurisdiction with 
regard to them, except when a court-martial exceeds its 
jurisdiction or inflicts a penalty not warranted by law. 

The most interesting question with regard to military 
justice arises when it is extended to private citizens in 
time of war or great civil disturbances. During the Civil 
War, President Lincoln assumed the power of suspend- 
ing the privilege of the writ of habeas corpus throughout 
the country, and of giving military courts the right to 
convict and punish all persons charged with giving aid or 
comfort to the enemies of the United States. Congress 
ultimately sanctioned his conduct. In time of great riots 
or similar disturbances, the governor of a state may de- 
clare martial law within the region affected. In such 



FOREIGN RELATIONS AND NATIONAL DEFENSE 329 

cases military justice is administered by the militia of the 
state, under the direction of the governor. The preserva- 
tion of pubhc safety is the highest law, and private rights, 
even those guaranteed by the Constitution, cannot stand 
against it. 

SUGGESTIONS FOR FURTHER STUDY 

Beard, pp. 315-357, has excellent chapters on foreign affairs and 
national defense. See also Readings, pp. 308-322. Haskins, F. J., 
The American Government, pp. 40-64, is interesting. Hart, A. B., 
Actual Government, pp. 459-480, will prove useful. The Encyclopedia 
of American Government should also be consulted. The American 
Year Book for 19 13 describes the present organization of the army 
in some detail. See also Report on the Organization of the Land 
Forces of the United States (Government Printing Office, 191 2). A 
very useful work is that of Upton, Maj.-Gen. E., The Military 
Policy of the United States, Sen, Doc. 494, 6 2d Congress, Second 
Session. 

Topics : 

Official Residences for Ambassadors. 
American Diplomats and Court Etiquette. 
Extension of the Merit System. 
The Various Plans for " Preparedness." 



CHAPTER XXVIII 



CRIME AND ITS PREVENTION 



Primitive 
punishment ; 
vengeance 



Moral 

responsi- 

biUty 



The earliest idea of punishment was simply that of 
personal vengeance. A wrong committed against any 
individual was avenged by that individual alone, or with 
the assistance of his family or clan. As time went on and 
the necessity for peace and good order became better 
recognized, there was substituted for this system of 
violent personal vengeance a regular schedule of pay- 
ments which had to be made by the criminal or his family 
to the injured party. These payments were known as 
"wergild." Gradually, increasing emphasis was laid on 
crime as an offense against the peace of the tribe, or the 
king, and ultimately the idea of personal vengeance dis- 
appeared from punishment. It has been a principle of 
the English common law for centuries that a private in- 
dividual cannot excuse or pardon a criminal offense 
committed against him. 

The advent of Christianity among our rude European 
ancestors brought with it the idea of sin and the moral 
responsibility of the criminal for his act. All through the 
Middle Ages and down to the very close of the eighteenth 
century, crime was punished, in part, it is true, to vindi- 
cate the majesty of the State, but in large measure as 
vengeance for the violation of the moral law. The result 
was a very severe punishment for all offenses. In the 
seventeenth century, in England, a man might be hanged 
for stealing a rather small loaf of bread, and it was not 
until well into the nineteenth century that the death 
penalty for the offense of sheep-stealing was removed. 

330 



CRIME AND ITS PREVENTION 331 

In the latter part of the eighteenth century a strong 
humanitarian movement arose, which had for its object 
the modification of the penalties imposed on crime. It 
advanced the theory that the punishment should be pro- 
portionate to the character of the offense. It assumed, for 
example, that murder was a worse crime than burglary, 
and burglary than pocket-picking, and established punish- 
ments accordingly. Sometimes the punishment was fixed 
absolutely, but more frequently, as time went on, the judge 
was given power to fix the amount of the sentence within 
certain limits. This represents the theory of punishments 
now prevailing practically all over the United States. 

It was not until 1876 that a great Italian, Cesare Natural 
Lombroso, first brought forcibly to the attention of the ^^^naUt 
world that forty per cent of criminals might be distin- 
guished from other men by certain peculiarities of their 
anatomy. Lombroso made elaborate and careful studies 
of great numbers of criminals and thus laid the founda- 
tions of the modern science of criminology. Any one who 
studies its literature will find a number of conflicting 
theories as to the cause of criminality. It is enough for 
our purpose if we realize that crime does not arise simply 
from the bad choice of the individual. Evil traits are 
inherited from one generation to another. Alcoholism, 
the use of drugs, immorality, and ill-nourishment tend to 
create types of men easily tempted into crime. Bad sur- 
roundings may corrupt the mind and will. You must 
not fall into the error of thinking that the ordinary crimi- 
nal is not at all responsible morally for his conduct. He 
is. On the other hand, it is true that his disposition to 
commit crime has in most instances been determined by 
facts outside of his control. 

If men commit crime largely because of causes beyond 
their control, we are not justified in punishing them on 



^2>^ 



THE FUNCTIONS OF GOVERNMENT 



Modern 
theory of 
punishment 



Jails 



behalf of an angered deity. Punishment may still be 
necessary, but its only excuse can be the prevention of 
crime. Furthermore, for the purpose of prevention, it 
is desirable that we should treat the so-called criminal 
in such a way as, if possible, to cure those defects of body 
or character which have made him a criminal. This is 
of course easiest with young persons and with those just 
entering on a career of crime. It is also important to 
restrain permanently the liberty of those criminals who 
cannot 'be cured. Such a criminal when released will 
proceed to commit other crimes, and, what is of even 
more significance, may bring into the world a family of 
children predisposed to crime. It is for these reasons that 
those who know most about this subject advocate the 
indeterminate sentence, under which the offender may be 
committed to prison until cured. 

Each county and, with few exceptions, each city and 
village in the United States has a jail, in which persons 
arrested for crime are confined pending trial, unless they 
are released on bail.^ These jails are also used as places 
of confinement for those convicted of misdemeanors. 
Generally speaking, they are very badly kept. More 
often than not they are filthy. Frequently no proper pro- 
vision is made for separating the different classes of 
prisoners. Convicted criminals and those merely accused 
of crime are often allowed to mingle. These jails, there- 
fore, become schools of crime. In some of them condi- 
tions are so bad that guilty persons look forward with 
pleasure to a sentence which will take them to the state 
penitentiary. 

Persons convicted of more serious crimes are confined 
in prisons or penitentiaries, as they are sometimes called, 

1 Persons accused of violating the laws of the United States as well as 
of the state are kept in these local jails pending trial. 



CRIME AND ITS PREVENTION 333 

maintained by the state. They are usually administered Prisons 
by a superintendent of prisons or a state prison commis- 
sion. Some states have prisons of modern construction 
with adequate provision for light, air, and sanitation. 
Many of our prisons, however, are vile, vermin-infested, 
and destructive of the health of prisoners. The great 
New York state prison at Ossining is an example of the 
old-time prison architecture which defeats, on the phys- 
ical side at least, all efforts to improve the criminal. In 
the older prisons two or more convicts are confined in 
the same cell, with the result that the better of the two is 
frequently corrupted by the other. 

Down to the beginning of the nineteenth century. Prison labor 
prisons were regarded simply as places of detention, and 
the inmates rotted in idleness. We now endeavor to 
teach each prisoner some useful trade and to keep him 
occupied at it during the period of his imprisonment. 
Popular prejudice against prison-made articles has greatly 
limited the occupations which may be carried on in 
prisons, but of late some progress has been made by 
permitting the prisoners to manufacture articles for use 
in pubUc institutions. In many prisons schools are carried 
on, and various efforts are made to elevate the thoughts 
of prisoners and to prepare them to face the world when 
they go out. Convicts used to be dressed in ugly striped 
suits. This practice is now being abandoned, as destruc- 
tive of the self-respect of the individual. 

On being released from prison, the convict is given a The convict 
suit of clothes, usually made in the prison, a ticket to the 
place from which he was convicted, and a small sum of 
money.^ Up to a few years ago this was all the attention 
which the released convict received until he committed 
his next crime. Private societies began the work of find- 

» About five dollars. 



tones 



334 THE FUNCTIONS OF GOVERNMENT 

ing employment for them and looking out for their in- 
terests. This task has now been somewhat taken up by 
prison authorities, but a great deal remains to be done 
really to insure the criminal a fair chance to be "straight." 
The average person does not want to have anything to do 
with an ex-convict. The cold shoulder is turned upon 
him in every quarter, and he is often forced, in sheer 
desperation, to go back to his criminal ways. Every 
individual can help in the reformation of criminals by a 
kindly and sympathetic attitude toward those who have 
been so unfortunate as to commit crimes. 
Reforma- Until a comparatively short time ago all prisoners, 

without regard to age, sex, or the character of the crimes 
they had committed, were confined together in our state 
penitentiaries. The obvious effect of this treatment was 
that those who were young and unconfirmed in crime 
became hardened criminals from association with the rest. 
The first efforts made to correct this situation were 
the creation of special places of confinement for young 
persons. These places were called "reformatories," to 
distinguish them from prisons, and an effort was made to 
give them the atmosphere of a trade school rather than 
a prison. Too often, however, the efforts in this direction 
have been half-hearted and the ofi&cers of the institution 
act rather as keepers than as teachers. Another step in 
this direction which has been taken in certain states is 
the establishment of reformatories for segregating the 
different kinds of offenders — the feeble-minded, those 
just starting in crime, and others who differ only in 
point of age from the hardened criminal of the state 
prison. 

Reformatories are often justly called schools of crime. 
This has led to an increasing use of the probation system, 
under which a guilty person, instead of being sentenced 



CRIME AND ITS PREVENTION 335 

to prison, is permitted to enjoy individual liberty under Juvenile 
the supervision of a probation officer. This officer helps p°oJation 
him to secure employment or, in the case of juvenile 
offenders, sees that they are supported under conditions 
suitable for the bringing up of boys and girls. A person 
on probation has to report periodically to the probation 
officer or the judge. In order to handle more reasonably 
the cases of young persons who come in conffict with the 
law, juvenile courts have been established, usually as 
branches of the superior or trial court. The juvenile 
court room is stripped of the usual fittings of a criminal 
court. There is no jury, no witness stand, no prosecuting 
officer. The young offender is brought in and examined 
by the judge rather as a friendly adviser than as a minister 
of justice. A judge may commit a child to an institution, 
either a reformatory or a ''home" maintained by private 
charity, but more frequently he arranges, with the help 
of the probation officer, for proper care of the child by 
its parents, or if that is impossible, in some other private 
family. Children thus placed on probation must report 
periodically to the probation officer. It is his duty to 
study the child and his surroundings and to help him to 
become a useful citizen. Juvenile offenders are not now 
usually subject to the horrors of a city jail, pending the 
hearing of their case. Special detention homes are pro- 
vided for them, with competent matrons and nurses in 
charge. 

The functions of a poHce force are to preserve order The poUce 
and to discover and arrest those who commit crimes. 
For fifty years after the adoption of the federal Consti- 
tution constables, elected by the inhabitants of each 
ward, were almost the only police protection afforded in 
our cities. The first police force, in the sense in which 
we now understand that word, was instituted in 1828, 



ministration 



336 THE FUNCTIONS OF GOVERNMENT 

when Sir Robert Peel secured the enactment by ParUa- 
ment of a law creating a police force for the administra- 
tive district of London. It was not until nearly the middle 
of the nineteenth century that police forces on the London 
model became common in American cities. 
Police ad- In our larger cities the head of the police force is 

usually a civilian or board of civilians. Formerly the 
board system was practically universal. Police boards, 
however, generally proved to be inefficient and were 
frequently corrupt. An effort was made to correct the 
evil by providing that they must contain representatives 
of each of the leading political parties. These bipartisan 
boards, however, were worse than their predecessors. 
While the board system is still retained in some of our 
larger cities, the tendency in recent years has been to 
put the control of the police force in the hands of a single 
individual. Below the police board or commissioner is 
always the chief of police. In New York City he is simply 
an executive assistant of the police commissioner, but in 
most cities he is in actual charge of the ordinary opera- 
tions of the department. In small cities there is frequently 
no civilian head of the department and the chief of police 
is directly responsible to the mayor, city manager, or 
city council.^ 

Men are appointed to the police force in the larger 
cities on the basis of competitive mental and physical 
examinations. In the smaller cities officers are appointed 

^ The larger cities are divided into precincts, in charge of each of which 
is an officer usually known as " captain." Attached to each precinct 
station house are one or more officers, usually known as " desk sergeants," 
whose business it is to keep the station-house "blotter" (a large book in 
which are entered the names and charges against all persons brought to 
the station house) and other records. The sergeant may accept bail in the 
case of misdemeanors and sometimes can issue warrants of arrest. There 
are also attached to every precinct officers who are sometimes called 
" roundsmen " and sometimes " sergeants," who have direct charge of the 
patrolmen. 




Judge Ben. B. Lindsey of Denver holding a conference in his famous 

juvenile court. 



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Miss Mary Bartelme, of Chicago, who assists the judge of the juvenile court 
in that city by hearing girls' cases in a separate chamber, questioning a young 
delinquent brought before her for examination. 



CRIME AND ITS PREVENTION 337 

at the discretion of the poHce board or commissioner, ex- The poUce 
cept that it is common to estabhsh a minimum physical ^^^^^ 
and age qualification by charter or ordinance. Our pohce- 
men are generally of fine physique and excellent courage. 
Promotions up to the grade of captain are made from the 
regular force. The chief of police in small cities may be 
appointed from the outside. The salaries of patrolmen- 
vary from seven to twelve hundred dollars, and the 
officers are paid in proportion. It is not unusual to pen- 
sion pohcemen disqualified for service by injury or old age. 
It is of course clear that a uniformed policeman can do The 

little more than preserve order on his beat, and arrest <^f*®?*^o^ 
'- ' 01 crime 

persons whom he may catch ''red-handed" in crime.. 
The most serious crimes are committed in secret, and the 
task of finding out who has committed them is one re- 
quiring considerable skill. In all large police forces 
certain men are assigned to this duty. They wear no 
uniforms and are usually called ''plain-clothes men" or 
"detectives." They seldom perform the marvelous acts 
of deduction which are so easy to the detectives of fiction, 
but they do manage to discover and convict a great many 
of the perpetrators of crime. In this they are aided by 
very complete police records with regard to criminals. 
Every person who is arrested in the large cities is weighed, 
measured, and photographed. These records form what 
is known as the "rogues' gallery." In addition, their 
finger prints are taken. It has been discovered that the 
minute whorls at the ends of our fingers are the most 
permanent parts of our body. They are impossible to 
change, and form an absolute means of identification of 
prisoners. Furthermore, records are kept of every crime 
committed, and the records of prisoners and of crimes are 
exchanged by the police of the principal cities. The de- 
tectives study the criminal class until they become 



SSS THE FUNCTIONS OF GOVERNMENT 

familiar with its members. They thus learn whom to 
suspect when a crime is reported, and where any record, 
such as a thumb print, is left by the criminal at the scene 
of his crime, they are able to "run him to earth" quite 
promptly. Of course, many crimes go undetected and 
unpunished, especially homicides. Our detective de- 
partments, however, are working along scientific lines, 
and improvements are to be looked for. 
Police Sometimes police officers are so lacking in a sense of 

"s^^^*" their real duty as to permit certain criminals to commit 
crime with impunity. This is especially true with regard 
to violators of liquor laws and the laws regulating gambling 
and the social evil. These criminals pay well for police 
protection and are the principal source of police graft. 
It is much more rare for the police to graft upon burglars 
or highwaymen, but even this is sometimes done. In a 
corrupt police force the patrolman or other officer who 
collects money frequently - passes it on to persons higher 
up. Generally speaking, the rank and file of the police 
force is about what those in authority want to make it. 



SUGGESTIONS FOR FURTHER STUDY 

Beard, pp. 607-613, deals with the subjects of police administra- 
tion and the juvenile court. See also the same author's American 
City Government, pp. 158-189. Munro, W. B., The Principles and 
Methods of Municipal Administration, ch. vii, gives an excellent ac- 
count of the organization of police administration. The best book 
on the juvenile court is Flexner and Baldwin, Juvenile Courts 
and Probation. For teachers, see McAdoo, William, Guarding a 
Great City, and Fuld, Police Administration. 

There is no very easy reading on the subject of criminology. 
Henderson, C. R., Introduction to the Study of the Dependent, De- 
fective, and Delinquent Classes, is an excellent elementary book. 
Ellis, Havelock, The Criminal, is scientific and popular. See also 
an excellent article by Hart, H. A., A Working Program for the 



CRIME AND ITS PREVENTION 339 

Extinction of the Defective Delinquent^ in the "Survey," May 24, 
19 13. See also Encyclopedia of American Government. Good use 
can be made of such books as Riis, J., How the Other Half Lives, 
Children of the Tenements, The Children of the Poor ; Spargo, John, 
The Bitter Cry of the Children, etc. The classic work on the subject 
is LOMBROSO, C, Crime, Its Causes and Remedies. Translations of 
the works of the principal European writers are to be found in the 
Modern Criminal Science Series, published by Little, Brown & Co. 
See also Henderson, C. R., Correction and Prevention of Crime. 

Of life in modern prisons, the best idea can be obtained from 
such personal accounts as Jennings and Irwin, Beating Back, and 
LowRiE, Donald, My Life in Prison. 

Topics : 

The prisons, reformatories, juvenile courts, and police depart- 
ments of your own state and locality furnish numerous excel- 
lent subjects for investigation by students. A visit to the 
criminal identification bureau of your police department will 
be interesting and profitable. 



CHAPTER XXIX 



PUBLIC MORALS AND RECREATION 



Leisure and 
vice 



The liquor 
traffic 



The old saying, "Satan always finds some work for 
idle hands to do," is a very true one, especially in the case 
of young people who are bubbling over with energy and 
the desire for enjoyment. Overstrained workers also 
naturally seek relaxation. They are apt to pursue pleas- 
ure feverishly and to supply by the use of stimulants 
any lack in the natural zest they have for it. Unfortu- 
nately society has only just begun to recognize its respon- 
sibilities for providing healthy, normal recreation for the 
leisure hours of the people. The result is that those seek- 
ing enjoyment have been made the prey of greedy and 
unscrupulous persons, who sell cheap, vicious, and de- 
structive pleasure at high prices and make gain of the 
natural human instincts by perverting them to their own 
profit. 

The most powerful and generally significant of these 
perverting forces is the liquor traffic. The question as 
to whether an individual shall use liquor or not is largely 
personal. The question, however, as to the social effects 
of its sale is one which concerns the whole community. 
There can be no question that, as at present conducted, 
the American saloon is a thoroughly demoralizing insti- 
tution. It is not within the province of this book to point 
out the evils of the habit of excessive drinking ; these are 
well-known facts of physiology. There is no doubt that 
the saloon encourages excessive drinking. Furthermore, it 
is the door through which the grosser and more destructive 
vices enter. The saloon is often frequented by gamblers, 

340 



PUBLIC MORALS AND RECREATION 341 

evil women, thieves, and other criminals. It is also a 
source of political corruption. The saloon-keeper and his 
bartenders have certain hangers-on whose votes they can 
control, and they become very important as party workers 
and an important cog in the corrupt pohtical machine 
(see Chapter VIII). 

The United States has done nothing with regard to the Prohibition 
Hquor traffic except to tax it. The individual states ^^^^^^ 
have, however, adopted numerous restrictive measures. 
The most drastic of these is total prohibition, which is 
now the policy of seventeen states.^ 

It is to be noted that the cause of prohibition has made 
very rapid progress since 1907. AH the other states have 
some form of local option, by which each locahty decides 
for itself, by popular vote, whether or not it will license 
the sale of liquor. The unit is most frequently the county, 
but in several states it is the town, village, or municipahty. 
Some of these laws provide that if the county goes '' dry " the 
sale of Hquor is prohibited throughout the whole county, 
but that if it votes ''wet" the minor divisions within the 
county may still, if they desire, forbid the sale of Hquor. 

In Massachusetts the question of Hcense or no license is 
voted upon each year in every town and city. In most 
states, however, the question is put upon the baHot only 

1 Prohibition States 

Date -Do/e 

State Adopted State Adopted 

Maine 1858 Virginia 1914 

Kansas 1880 Oregon 1914 

North Dakota 1890 Washington 1914 

Georgia 1907 Arizona 1914 

Oklahoma 1907 Colorado 1914 

Mississippi 1908 Alabama 1914 

Tennessee 1909 Arkansas 1914 

North Carolina 1909 South Carolina 191S 

West Virginia 1912 



342 THE FUNCTIONS OF GOVERNMENT 

when it is requested by a petition signed by a certain pro- 
portion of the voters of the locaUty. In New York the 
voters have their choice as to whether hcenses shall be 
issued to saloons, hotels, wholesalers, or drug stores. 
Under these "local option laws" a large and increasing 
number of localities have forbidden the sale of liquor. 
The prohibition states and prohibition localities together 
constitute upwards of two thirds of the area of the United 
States. The Interstate Commerce clause of the Consti- 
tution was for a long time the chief obstacle to really 
effective prohibition. The Supreme Court decided that 
no state or locaHty could prohibit the sale of liquor shipped 
from other states, so long as it remained in the original 
package. Congress was finally induced in the early part 
of 19 13 to pass a law, making applicable the laws of the 
state or locality as soon as a shipment of liquor passed 
within its boundaries. This act was vetoed by President 
Taf t, but was passed over his veto by the necessary two- 
thirds majority. 
Further re- A Hcense is everywhere required for carrying on the 
the*sale^of°° ^^^^ °^ intoxicating liquors, the fee varying from a few 
liquor dollars to $1200 a year.^ In general it is fixed at the point 

which is believed in the locality to be high enough some- 
what to restrict the number of saloons. Several states 
and many cities and counties limit the number of licenses 
which may be granted to a certain proportion of the popu- 
lation. In Massachusetts, for example, this number is 
one for every thousand outside of Boston, while in that 
city the number of saloons is limited to one thousand. 
Where this policy is not followed, the number of saloons 
tends to become excessive. It is usually required that the 
person who receives a license shall be a "person of good 
moral character," and that he shall have the consent of 

^ The latter is the amount charged for licenses in New York City. 



PUBLIC MORALS AND RECREATION 343 

the neighboring property owners. The sale of Hquor to 
minors, intoxicated persons, and Indians is generally 
forbidden. Some states forbid the sale to a man or woman 
when either wife or husband, or parents, have requested 
that liquor be not sold to them. The presence of women 
in saloons is forbidden in certain states. Some states 
require that the windows of all places where hquor is 
sold shall be of clear glass, so that the place is open to 
view from the street. Some states forbid booths or par- 
titioned spaces in a place where hquor is sold. In all but 
a few states the hours of closing and opening are fixed. 
Laws forbidding the practice of treating have been 
adopted in a few places with excellent results. 

Gambling, even when fairly conducted between individ- GambUng 
uals, is a dangerous practice. The possibihty of getting 
something for nothing has a powerful appeal to human 
cupidity. It is easy to become fascinated by games of 
chance, and many people will lose all they have and more 
in playing them. Furthermore, the gambling in profes- 
sional gambhng estabhshments is usually unfair. The 
loss of money through gambhng leads men to commit 
thefts and other crimes and reduce their famihes to want. 
Thus its ultimate social consequences are not hmited to 
the mere stripping a fool of his money. These facts have 
led to the general prohibition of gaming houses and of all 
forms of gambling conducted by professionals. While 
the terms of the laws are broad enough to include betting 
by any one, on any chance whatever, no method of 
enforcing them against merely private bettors has been 
discovered. Many years ago the United States put a 
practical end to the great lotteries by forbidding the trans- 
portation through the United States mails of the adver- 
tisements of lotteries or the announcements of the winning 
numbers. The last form of gambhng to be prohibited 



344 THE FUNCTIONS OF GOVERNMENT 

was racetrack gambling. The conduct of this form of 
gambhng was profitable not only to the bookmakers, or 
professional gamblers, but to the management of the 
racetrack itself. Vast sums of money were invested in 
racetracks, and many persons believed it desirable to 
encourage them because of the stimulus which they gave 
to the breeding of fine horses. It came, however, to be 
generally recognized that it was more important to pre- 
serve the breed of men than to improve that of any four- 
legged animal. Racetrack gambling has now been pro- 
hibited in nearly every state in the Union. 
Dance halls Many forms of pleasure in themselves quite innocent 
have been commercialized, frequently with bad results. 
Taking advantage of the natural desire of young people 
to dance, great numbers of commercial dance halls have 
been established. A few of these are conducted in an 
exclusive fashion for the benefit of well-to-do people who 
desire to learn to dance. The vast majority, however, are 
open to any one who can pay the fee charged. A large 
number of these establishments conduct classes in dancing, 
and on one or two nights a week give a ball for the mem- 
bers of the class and such others as desire to come. Another 
sort of dance hall is open every evening, on the payment 
of a moderate fee, to all comers. Girls are usually ad- 
mitted free to these places. In many dance halls of both 
these classes, liquor is either sold on the premises or near 
by. There is seldom any chaperonage for the young 
women, and the whole atmosphere is demoralizing. More 
sordid still are those dance halls where girls are employed 
to dance with the patrons, and receive a commission upon 
the sales of liquor they are able to make. Dance halls 
have become much more common in the last few years, 
with the introduction of the new styles of alleged dancing, 
which can be easily picked up without instruction. In 



PUBLIC MORALS AND RECREATION 345 

view of the evils which undoubtedly flow from the com- 
mercial dance halls, many good people advocate their 
entire suppression. The desire to dance is, however, so 
inherent that it would appear to be better to try to 
re-direct that desire than to undertake the hopeless task 
of suppressing it. Recreation during the winter months 
must be largely indoors, and it is a very encouraging fact 
that properly conducted dances, with good music and 
good dancing floors, can compete successfully with cheap 
commercial dances. Places where dancing may be en- 
joyed without access to intoxicating liquor and with 
proper chaperonage should be established by municipal 
activity if necessary. 

Another type of indoor amusement, and one that is Theaters 
even more universally enjoyed than dancing, is that fur- ^^^ picture 
nished by the theaters and picture shows. The stage at 
its best is one of the noblest means of literary expression. 
Probably the most effective means of improving the legiti- 
mate stage is by applying our highest ideals to the selec- 
tion of plays to attend. No public censorship of plays 
has ever worked satisfactorily. The vaudeville and 
burlesque theaters have been dealt a crushing blow by 
the ''movies," and are by no means as important a prob- 
lem as they were some years ago. It is to the picture 
theaters that the multitude resort. The moving-picture 
play is rapidly developing from a portrayal of primitive, 
slapstick comedy and crude melodrama to include every 
type of drama ever produced on the legitimate stage. It 
has put within the reach of the common people great dra- 
matic masterpieces and the acting of the world's greatest 
living actors and actresses. The demand for new films, 
however, is so insatiable, that thousands of them are 
turned out with little regard to anything except pleasing 
the public fancy. They correspond to certain types of 



346 THE FUNCTIONS OF GOVERNMENT 

cheap literature which they have replaced, and more than 
replaced. Where one boy read a dime novel, ten boys 
see the corresponding picture film. A very large propor- 
tion of the moving-picture audiences are made up of 
children, so that the effect of this sort of films upon their 
immature minds is very important. Several cities and a 
few states have established a censorship of moving- 
picture films. Intelligent censorship so directed as to 
exclude the objectionable while retaining every element 
of attractiveness would be the solution of this problem, if 
it could be secured. Clean picture films help to keep out of 
mischief great numbers of boys and girls and grown people 
as well. 
Amusement The exploiters of the desire for pleasure have also gone 
^*^ ^ into the field of outdoor amusements. Chief among their 

enterprises is the amusement park, which varies all the 
way from simple picnic grounds to elaborate if not beau- 
tiful money-getting devices, such as Luna Park and 
Dreamland at Coney Island. They are frequently located 
in situations of natural beauty, or upon the shores of 
oceans, lakes, or rivers. They are, therefore, subjected 
to the objection that their private ownership compels 
persons to pay for the enjoyment of things which should 
be free to all. Generally speaking, the majority of these 
amusement enterprises are very orderly and well con- 
ducted and offer no greater possibility of harm to young 
people than they are under anywhere outside of their 
own home. There are some amusement parks, how- 
ever, which are infested with people of evil character and 
full of danger to the young. Amusement parks, there- 
fore, should be under strict public regulation. 

The most important public provision for recreation has 
been the establishment of parks. The United States 
government has set aside as national parks certain dis- 



PUBLIC MORALS AND RECREATION 347 

tricts of the public domain containing great natural National 

wonders and beauties. The most important of these are ^^^ ^***® 

^ parks 

the Yellowstone and Yosemite parks. The great national 
forest reserves may be considered in a certain sense as 
parks, being open to the use of campers under certain 
regulations. They are, of course, available only for the 
enjoyment of a limited number of people who can afford 
to make the long journey to reach them. Many of the 
states have also established reservations to protect beau- 
tiful or curious scenery, or sites of historical importance, 
and about one third of the states have also considerable 
forest reserves. The state of Massachusetts has, through 
the Metropolitan Park Commission, established in the 
cities and towns surrounding Boston a most beautiful 
and comprehensive system of public reservations. With 
this single exception, however, no state government has 
done much toward putting parks within the reach of the 
mass of the people. 

The earliest city parks in this country were nothing Municipal 
more than common cow-pastures. The beautiful and ^^^ ^ 
dignified Boston Common is perhaps the best example of 
a park of such ancestry. It was not until well after the 
middle of the nineteenth century that cities began to 
take any particular heed with regard to the development 
of parks. The first great undertaking in this direction 
was the acquisition of Central Park by New York in 
1853. The plans for its beautification were made by 
Frederick Law Olmsted, and it has served as the model 
for parks throughout the country. Most of the parks 
acquired prior to 1890 were situated at some distance from 
the centers of population, and so were not available as 
playgrounds for the great bulk of children. In the last 
twenty-five years, however, many cities, notably Chicago, 
New York, and Boston, have acquired numerous small 



348 THE FUNCTIONS OF GOVERNMENT 

tracts of land in the crowded portions of the city and 
have made them into recreation grounds for the people 
of the locality. This is the last step in park development. 
It is to be regretted that greater foresight was not shown 
in reserving from the outset occasional blocks for this 
purpose, as our cities have been obliged to pay enormous 
prices for land for small parks and playgrounds. 
Playgrounds The establishment of playgrounds as a branch of 
municipal activity is of comparatively recent origin. 
At the close of 19 13 there were 1050 cities where super- 
vised recreation was supported wholly or in part by 
municipal funds. Only nine of these cities started the 
work prior to 1900. Boston took the lead in 1887 ; Chi- 
cago followed in 1893 ; Pittsburgh, Hartford, New Haven, 
Baltimore, New York, San Francisco, and Albany were 
the only others which had established playgrounds by 
1899. It would be impossible within the space which can 
be devoted to this subject, to describe in detail the various 
playground and allied recreational facilities. It is essen- 
tial to the success of the public playground that the play 
be supervised. Opportunity to play well-organized games 
and to use good gymnasium apparatus has drawn the 
children from the streets and given them a reasonable 
outlet for their energies. It is much better that the extra 
activity of the boy should go into a good game of base- 
ball, than into devising mischief. The toughest gangs 
have been broken up and the petty crimes which children 
commit have almost entirely disappeared where play- 
grounds have been opened in the slum districts of large 
cities. All together, the advantage to the community of 
such playgrounds is tremendous. Every community, 
large or small, whether its present need of playgrounds is 
great or not, should at least acquire sites for them, in 
anticipation of future development. Every school should 




An outdoor gymnasium for men and boys in Chicago's admirable system of 
parks and playgrounds. 




Women and girls in one of the public baths of New York City. 



PUBLIC MORALS AND RECREATION 



349 



Recreation 
centers 



have playgrounds for children, and these should be open 
after school and during vacation. 

It is not enough to establish outdoor playgrounds. 
Some provision for play during the stormy months must 
be made, and likewise something must be done for the 
older members of the community. A great deal has been 
accomphshed in some of the cities, notably Rochester, 
N.Y., in using the schoolhouses as recreation centers. 
Instead of locking the schoolhouse after school hours, it 
is kept open and used as a meeting place for the people of 
the neighborhood. In its auditorium lectures are given 
for mothers' clubs, and a great many varieties of classes 
and clubs are organized. If the school is equipped with 
a gymnasium, as every school should be, this is utilized. 

Some cities have created recreation centers in con- 
nection with their parks and playgrounds. The greatest 
success along these lines has been achieved by Chicago.^ 

Bathing is of importance, of course, from the point of Public 
view of health. The motive for the establishment of 
public baths, however, has been largely recreational, and 
they are used so much in this spirit that it seems proper 
to discuss them in this place. There are two great classes. 
The first comprises out-of-door baths, which may be used 
only during the summer season. The second may be 

1 This city has several small parks, varying from two to sixty acres in 
extent. They are beautifully laid out, and provisions are made for the wants 
of all ages and sexes. They offer facilities for football, baseball, tennis, 
and basketball, and during the cold season for skating, tobogganing, etc. 
There is an athletic field and gymnasium for men and an outdoor gymnasium 
for women and girls, as well as a fully equipped playground for the younger 
children, including a great variety of apparatus and a wading pool. These 
parks also have bathing pools of considerable size, with ample dressing rooms. 
The playgrounds are hghted, so that they may be used at night as well as 
during the day. Branches of the pubUc library are maintained in these 
places. Light lunches may be secured. There are indoor gymnasiums for 
men and women, and lockers, shower baths, and a plunge. There are also 
four or five clubrooms, which are used for a variety of organizations, the 
creation of which is encouraged by those in charge of the work. 



baths 



350 THE FUNCTIONS OF GOVERNMENT 

called all-the-year-round baths. Baths of the first class 
usually are located on the shore of a lake, river, or ocean, 
dressing rooms being supplied by the city. In some cases 
artificial baths have been constructed, and floating baths 
are sometimes used in rivers and harbors. The greatest 
seaside bathhouses now publicly managed are those 
maintained by the Massachusetts MetropoKtan Park 
Commission at Revere Beach and Nantasket. They are 
used by thousands nearly all the year round. In the 
indoor baths which are located in the most crowded por- 
tions of many of our cities there is more of the element 
of cleanliness and less of recreation than in the outdoor 
baths, but practically all of them have a large plunge.^ 

SUGGESTIONS FOR FURTHER STUDY 

There is no good elementary book on the liquor problem, and few 
of any kind. Most of the literature upon the subject is controversial. 
The American Issue Publishing Company of Westerville, Ohio, 
publishes numerous books and papers advocating prohibition, 
among them the Anti-Saloon League Year Book, which gives the best 
summary of the present status of the saloon question. The position 
of the liquor trade is best represented by the Year Book of the 
United States Brewers' Association. Periodical references, which are 
very numerous, must be largely depended on. Among the dependable 
books for teachers are : Committee of Fifty, The Liquor Problem, 
and Rountree and Sherwell, The Temperance Problem and Social 
Reform. 

On municipal recreation, see Beard, C. A., American City Govern- 
ment, for a general sketch of the subject. Addams, Jane, The Spirit 
of Youth and the City Streets, is stimulating and authoritative. See 
also books by Jacob Riis cited in last chapter. Robinson, C. M., 

1 It is now the general rule to charge a small fee for the use of the baths. 
In the baths of the Massachusetts MetropoUtan Park Commission, for 
example, the fee is ten cents if the bather brings his own suit, twenty-five 
cents if a suit is supplied him. Some of the all-the-year-round baths are 
free if the bather brings his own soap and towels, otherwise a small fee is 
charged. On the other hand, if one needs a bath, he is never really turned 
away because he lacks the required fee. 



PUBLIC MORALS AND RECREATION 351 

Modern Civic Art, pp. 287-354, and Koester, Frank, Modern City 
Planning and Maintenance, pp. 139-148, are beautifully illustrated 
books on city planning which incidentally treat this subject. Re- 
ports of the park and playground commissions of the several cities 
are very helpful. They are generally well illustrated. See especially 
the reports of the Chicago South Side Park Commission and the 
Massachusetts Metropolitan Park Commission. "The Playground" 
is an excellent periodical devoted to this subject and an indispensable 
work to any one who cares to follow it closely. Perry, C. A., Wider 
Use of the School Plant, Mero, E. B., American Playgrounds, Lee, 
Joseph, Constructive and Preventive Philanthropy, and Crawford and 
Day, American Park Systems, will be useful for teachers. 

Topics : 

Laws and ordinances with regard to saloons in your state and 

city. 
Each of the recreational features, public and private, of your 
locaUty can be made the subject of a report. For example, a 
committee of the class may study picture shows, reporting on 
the character of the films displayed during a week and recom- 
mending some plan of improvement. 



CHAPTER XXX 

CARE OF DEPENDENTS 

Who are THERE are in our country, as in every other, a large 

dependents? nuj-Qi^gj- of persons unable to earn a living. Defects of 
mind or body either present from birth or caused by 
accident or disease are a common cause of this inability. 
Extreme youth and extreme age are alike helpless. There 
are many, besides, who in the full enjoyment of mental 
and bodily health are, by the circumstances of modern 
industry or by great natural disasters, temporarily made 
destitute. The first duty of caring for those who cannot 
care for themselves rests upon their near relations. This 
high moral obligation is likewise enforced by the laws of 
our states. When all the help that affection or fear of 
the law can secure for such unfortunates as have families 
able to help them has been secured, and when all that is 
done by benevolent and fraternal organizations for their 
members has been added, there is still left a multitude of 
the unhelped. These are " dependents," the subject with 
which this chapter deals. 
Public vs. There has been a good deal of doubt as to just what 

private relief should be done for dependents by government and what 
by private charities. It is generally admitted that the 
maintenance of institutions for those dependents who can 
thus be best cared for is a proper function of government. 
The disputed ground is what is known as ''outdoor 
relief," that is, help which is extended to the destitute in 
the form of money, supplies, etc. Many people contend 
that the public officers who are charged with such duties 
are almost always ignorant and frequently corrupt, and 

352 



CARE OF DEPENDENTS 353 

that public outdoor relief is administered without regard 
to the causes which, in each case, have made relief neces- 
sary. Private charity has, through the associated chari- 
ties or charity organization societies, secured the careful 
investigation of each case by a skilled worker. It is there- 
by possible to give relief in such a form as will help to 
put the family or individual reheved beyond the need of 
future help. Records are kept of every case, of the relief 
given and of its subsequent history.^ It is entirely pos- 
sible for government in administering relief to use the 
methods of the associated charities. In German cities, 
publicly administered poor relief has the advantage of 
the gratuitous service of large numbers of interested 
persons, each of whom personally looks after a few poor 
families. They do this under the direction of the best 
experts obtainable. There is no reason why our cities, 
towns, and counties should not relieve the poor scientifi- 
cally, and there is no avoiding the fact that it is the duty 
of the whole community to relieve the distress within it. 

The general principle underlying pubHc poor relief in Local poor 
the United States is that each locaHty should care for its ^®^®^ 
own poor. The unit of poor relief is the town in New 
England and the county in most of the rest of the country, 
although a few states use the township unit. Poor per- 
sons are either maintained in almshouses or assisted by 
outdoor relief. Vermont has a system of town almshouses, 
and a few larger cities maintain city almshouses. In 
general, however, the almshouse is a county institution.^ 
Generally speaking, they are administered by the county 

1 Criticism is sometimes made that the methods of organized charity are 
heartlessly methodical and are the antithesis of genuine charity. Such critics 
lose sight of the fact that the important thing is, not the relief of individuals, 
but the cure of social disease. 

2 These almshouses are variously known as almshouse, poorhouse, poor 
farm, county infirmary, and county hospital, the latter two being efforts 
to remove the stigma attached to the term "almshouse." 



354 



THE FUNCTIONS OF GOVERNMENT 



Medical 
relief 



State insti- 
tutions 



board. Very little is done for the inmates except to clothe 
and feed them rather badly. Those who are sufficiently 
able-bodied are expected to work on the farm or about the 
buildings. Feeble-minded persons, and in most states 
many insane persons as well, are kept in these institu- 
tions. This does not lend much cheer to the lot of the 
other inmates. Where the county is the unit, outdoor 
relief is administered by the county board, and where 
the town or township is the unit, by the overseers of the 
poor. In incorporated cities the reheving authority is 
determined by the city charter. 

Medical assistance, including the services of a physician 
and a supply of medicine, is very generally furnished to 
persons in distress. Free dispensaries are supported by 
public and private charitable agencies, at which poor 
persons may have their minor ills attended to. Private 
hospitals usually make room for a certain number of 
poor patients, and free clinics are maintained by medical 
schools and hospitals. All our large cities and some coun- 
ties maintain hospitals which are free to the poor. Some 
of the states provide sanatoriums for the treatment of 
tuberculosis. The United States Public Health Service 
maintains more than twenty hospitals for seafaring men, 
and a tuberculosis sanatorium at Fort Stanton, New 
Mexico. The War and Navy departments provide 
hospitals at the various army posts and naval stations, 
and maintain general hospitals and sanatoriums for those 
engaged in their respective services. 

In many states, state institutions for the care of the 
insane and feeble-minded have been established. In New 
York, Minnesota, and California all pauper insane persons 
are regarded as a state charge and are confined in state 
asylums. In Wisconsin and Pennsylvania a good system 
of county insane asylums is maintained. The care of the 




An outdoor class of tuberculous children on the roof of a city school building. 




How patients in a city hospital are cared for on outdoor sleeping porches. 



CARE OF DEPENDENTS 



355 



insane, however, in county asylums and almshouses is 
generally so bad that the tendency is toward putting it 
wholly in the hands of the state. Most of the feeble- 
minded ^ who are not cared for by their relatives are 
unhappily still to be found in county almshouses. A 
beginning, however, has been made in several states 
toward their care in state institutions. At first it was 
hoped that by improving the methods of education a 
considerable proportion of feeble-minded children could 
be made self-supporting. This has, however, not proved 
to be the case. Because of the scant attention paid to the 
restraint of the feeble-minded, their number is rapidly 
multiplying. Farm colonies should be established, in 
which the adult as well as the youthful feeble-minded 
could be maintained, under healthy and pleasant condi- 
tions, without the opportunity of mingling with general 
society. 

The state has also assumed in a large measure the care 
of deaf, dumb, and blind children. There are more than 
fifty institutions for the deaf and dumb and more than 
forty for the blind. These schools are largely of an in- 
dustrial character, intended to enable these unfortunates 
to be self-supporting. Several state institutions for the 
adult blind have been established in the last few years. 

There are three common methods of administering Administra- 

the charitable institutions which are conducted by the tion of state 

. ^ . institutions 

state. The most common of these is by means of a board 

of trustees, usually appointed by the governor, for each 
separate institution. The trustees most often are resi- 
dents of the locality in which the institution is situated. 
They select the superintendent and determine the general 

1 It is difficult to define just what constitutes feeble-mindedness. It 
extends all the way from absolute imbecility to mere backwardness and 
inability to protect oneself in the struggle of life. 



356 



THE FUNCTIONS OF GOVERNMENT 



State super- 
vision over 
the care of 
dependents 



Unemploy- 
ment 



policy of the institution within the Hmits of the appro- 
priation allowed by the legislature. In certain states 
institutions of an allied character are combined under 
the management of a single board. In several of the states 
"boards of control" have been established, which have 
charge of all state institutions.^ 

Many states, through a state board of charities and 
correction, exercise supervision over local and private 
charitable institutions. They visit personally or through 
their officers the various charitable and penal institutions. 
They study the work of every charitable organization. 
Their power to compel the correction of abuses varies 
from state to state. Their chief weapon at all times is the 
publicity which they can give to bad conduct. 

Great disasters, such as fires, floods, droughts, earth- 
quakes, strikes, etc., have always thrown out of employ- 
ment large numbers of people. This of course is only a 
temporary cause of poverty, and disappears as soon as 
normal conditions are restored in the community. It is 
very proper to give money and supplies freely to the 
victims of a disaster, to help tide over the period until 
the wheels of industry are again in motion. We have 
lately, however, been perplexed by a problem of perma- 
nent unemployment. Every winter large numbers of men 
out of work congregate in our cities. Their numbers are 
increasing year by year. They are frequently disorderly, 

1 The advantage of the board-of-control system is that it makes it pos- 
sible to buy supplies for all state institutions on a wholesale basis, and to 
enforce standard methods of accounting. The advantage of the combined 
board for allied institutions is that it provides for the separate consideration 
of the problems of that particular class of institutions. The only advantage 
of the separate-board plan is that the members of the board are able to watch 
more closely the conduct of the institutions. This is not always an unmixed 
benefit. The tendency is in favor of greater and greater centralization. 
The ideal system would probably be an expert state superintendent of 
charities and corrections and a centralized purchasing system (see Chapter 
XLI). 



CARE OF DEPENDENTS 357 

and they lend a ready ear to the words of revolutionary 
agitators. For this they are not to be blamed. Hunger 
breeds desperation in the best of us. Their existence may 
be accounted for in part by the seasonal character of 
American industries. In a country Hke the United States, 
which is predominantly agricultural, there is much more 
work to be done in the summer than in the winter. Bad 
conditions of hving, especially in our great cities, have 
produced a class of people incapable of anything but 
occasional labor of a very simple kind. The scum of the 
flood of immigrants swells their number. These people 
drift into the country in the summer to find employment 
in the fields and orchards, and in the winter, together with 
the strictly professional tramp, drift back to the cities. 
Of even greater importance, however, is the number of 
honest, capable, industrious persons who are always out 
of employment. It is probably nearly correct to say 
•that, leaving out of account men out of work because of 
strikes, on the average at least ten per cent of the working 
force of the nation is always out of employment. 

Giving outdoor rehef to the unemployed tides them Remedies 
over the winter season, and with the coming of summer 
the situation becomes less acute. It does not, however, 
solve the problem. Indeed, too liberal outdoor rehef only 
encourages the growth of the weak and inefficient element. 
The seasonal character of industry can only be corrected 
by economic adjustment of such a nature that winter 
seasonal industries can be developed. How this is to be 
done is one of the great problems for pubHc-spirited men 
and women in years to come. Where the number of un- 
employed is very large, some form of work on roads or 
public buildings should be required o^ all who seek as- 
sistance, and the laws against begging and vagrancy 
should be strictly enforced. For the capable and Indus- 



358 THE FUNCTIONS OF GOVERNMENT 

trious worker whom the fortunes of industry periodically 
leave without employment, some form of insurance 
against unemployment is probably the only means of 
relief. 

SUGGESTIONS FOR FURTHER STUDY 

It is somewhat difiQcult to find references on the subject matter 
of this chapter suitable for young students. "The Survey" gives a 
popular treatment of many matters of this kind and is an indispen- 
sable periodical for any class studying the social activities of govern- 
ment. Henderson, C. R., Introduction to the Study of the Dependent, 
Defective, and Delinquent Classes (1906), is the nearest approach to 
a good elementary book on the subject. Warner, A, G., American 
Charities (1908) ; Devine, R. T., Principles of Relief (1904), and 
Misery arid its Causes (1909), are excellent books. See also Da\'EN- 
PORT, C. B., Heredity in Its Relation to Eugenics; Brackett, J. R., 
Supervision and Education in Charity; and Seager, H. R., Social 
Insurance, Good use can be made of the annual reports of charity 
organization societies, etc., and of the Proceedings of the National 
Conference of Charities . and Correction and the several state con- 
ferences. The United States Bureau of the Census has made special 
reports on Benevolent Institutions (1904) and on Insane and Feeble- 
minded in Hospitals and Institutions (1904). 

Topics : 

The best topics for reports may be found in the study of charitable 
agencies of your locality and state. 



CHAPTER XXXI 

EDUCATION 

Education is the greatest single function of government Begimiings 
in the United States. More than one fifth of our state and educational 
local expenditure is devoted to it. The interest in pubHc system 
education began with the first settlement of the New 
England colonies. One of the first acts of the Massa- 
chusetts legislature, for example, was to require every town 
of fifty famihes to maintain a common school. The idea 
that ample pubHc provision must be made for the educa- 
tion of every child thus early rooted in our institutions 
has spread throughout the present vast extent of our 
country. During the colonial period the schools were 
mostly for boys, but after the Revolution girls were gen- 
erally admitted to the common schools. Secondary 
schools, exclusively for boys, were estabhshed in a few 
of the large places, the first and in many ways the most 
significant being the Latin School of Boston, founded in 
1635. Outside of the large places, such college prepara- 
tory work as was done was carried on by the local minis- 
ters. About the time of the Revolution, academies for 
boys and boarding schools for girls began to be estab- 
hshed. These were sometimes supported by endowment, 
and in other instances were simply commercial ventures. 
Pubhc high schools, at first for boys alone, but later for 
both sexes, first appeared in 1820, and grew quite rapidly 
in the cities. It was not, however, until the estabhsh- 
ment of the ''union" high school, supported by several 
school districts jointly, that the private academies and 

359 



360 



THE FUNCTIONS OF GOVERNMENT 



Land grant 
aid to 
education 



Administra- 
tion of rural 
schools 



boarding schools were gradually supplanted. Private 
schools for elementary and secondary education are now 
most numerous in the eastern part of the United 
States. They are almost exclusively patronized by the 
well-to-do. 

The United States gave its first assistance to education 
by granting to each of the new states the sixteenth section 
of each township for school purposes. After 1848 the 
grant was increased to the sixteenth and thirty-sixth 
sections. These grants put the common schools upon 
a firm financial basis, even in the days of early settlement, 
and insured the spread of the free public school through- 
out the territory west of the AUeghanies. The United 
States also set aside two townships of land (46,080 acres) 
in each new state, for the support of higher education. 
Ohio, Florida, Wisconsin, Minnesota, and several of the 
more recently admitted states received even larger grants. 
In 1852 Congress granted to each state, in aid of agri- 
cultural and mechanical colleges, 30,000 acres for each 
senator and representative in Congress from that state. 
The states in which no public land remained received 
''scrip" entitling them to an equal quantity of land any- 
where in the public domain that they might care to locate 
it. The states made very different dispositions of these 
really huge grants. Some sold them off as quickly as 
possible at the minimum price of $1.25 per acre. Other 
states retained their land until it reached a very high 
value. The university lands of Minnesota, which have 
been kept to the present day, it is estimated will bring 
about $40,000,000. 

The unit for the administration of common schools is 
the school district. In those parts of the United States 
where the organized town or township exists, the school 
district usually has the same boundaries. It is, however, 



EDUCATION 361 . 

a separate corporation. The governing body of the school 
district is the school board. In its election women fre- 
quently have the right to vote, even when they do not 
possess the general suffrage. The board usually consists of 
three members, elected for a term of two or three years. 
It is the business of the board to provide school buildings, 
to employ teachers, and to levy taxes for school purposes. 
In some states the school district is divided into sub- 
districts, each of which contains a single school. These 
tiny districts are governed by a director, a trustee, or 
a small board elected by the people. Experience has 
proved, however, that the subdivision of the township 
for school purposes has produced bad results. The "dis- 
trict school" has had a halo of romance placed upon it 
by poets and story-tellers. The truth is, however, that 
it was formerly good because there was then nothing 
better. As compared with the work of the modern graded 
school, a teacher, struggling with pupils of all ages in one 
room, is unavoidably inefficient. The modern tendency 
is to unite school districts and to have a single graded 
school for the township, and where circumstances require 
it for several townships. It has been found cheaper 
to have such schools and pay for the transportation 
of the children to them than to maintain the district 
school of our fathers. In the South and in sparsely set- 
tled states Hke Nevada, the principal unit of educational 
administration is the county. The individual school 
districts are laid out and their affairs regulated by the 
county school authorities. 

All the states except Maine, Massachusetts, New County su- 
Hampshire, Ohio, and Rhode Island have a county super- Jf ^hoofs^''* 
intendent of schools. In a few instances he is appointed 
by the state superintendent of instruction or the state 
board of education. In the great majority of states, 



362 THE FUNCTIONS OF GOVERNMENT 

however, he is elected by the people of the county for a 
term of from one to five years. Two years is the term 
most frequently provided. It is his business to visit the 
schools of the county, especially the rural schools. He 
exercises an amount of influence with the local boards of 
education in the selection of teachers and the methods of 
education employed, proportioned to his tact and energy. 
It is his business to see that the compulsory education 
laws are enforced and that the course of study prescribed 
by the state is carried out. He has, besides, a great many 
functions of an administrative character with regard to 
salaries, statistics, apportionment of state and county 
funds, etc. He is expected once each year to hold an 
institute, which all teachers are required to attend, for 
the purpose of instructing them in the latest educational 
methods. These institutes are very valuable in keeping 
up the standard of teaching work and promoting the good 
spirit of the teaching force. In some states the county 
superintendent is assisted by a county board of education, 
whose duty it most frequently is to examine the candi- 
dates for certification as teachers. In certain of the 
Southern states, however, the county board is in direct 
charge of the schools of the county. 
City schools Every incorporated city constitutes a school district, 
sometimes bits of outlying territory being included with 
it for this purpose. The organization of the city board 
of education is usually determined by the city charter, 
so that there is considerable variety among the cities of 
the country in this respect. The board of education of 
the city of New York consists of forty-six members ; that 
of Chicago of twenty-one. The tendency in recent years 
has been toward a great reduction in size, five being ap- 
parently the number most approved. Boston, which had 
a board of 116 in 1874, reduced the number first to twenty- 




A specimen of the old-fashioned district school, now generally displaced by a 
centrally located graded school which serves all the children of the township. 




A great high school in New York City, where the pupils in daily attendance 
number more than four thousand. A school like this forms the center of 
higher educational activities in its community. 



EDUCATION 363 

four and then to five. In most cities the board is elected 
by the people, but in some is appointed by the mayor, as 
in San Francisco. School boards are generally unpaid, 
but there are some exceptions, as in Rochester, N.Y., 
and San Francisco. The board of education is charged 
with providing school buildings, maintaining school 
property, employing a superintendent and teachers, and 
levying school taxes. Most school boards leave the 
management of the educational side of the work to the 
superintendent. There are, however, a good many 
boards which feel it their duty to take part in the 
most minute details of school management. The finan- 
cial portion of their work the school boards generally 
administer directly, or through a business agent of some 
kind. 

The state administration of education is in the hands State ad- 

. . TT • ^n . ministration 

of a supermtendent or commissioner. He is generally ^^ education 

elected by the people, but in a few states, like Massa- 
chusetts and New York, he is appointed. The school 
law of most states is very elaborate and detailed, leaving 
little discretion to either the state or local authorities. 
The course of study is usually prescribed by this law. 
The superintendent is expected to visit the schools and 
make recommendations as to the methods of teaching in 
them. But the local authorities may adopt or neglect 
this advice as they will. The superintendent is also 
charged with certain clerical duties relating to apportion- 
ment of school funds to the several counties. In a large 
number of states there is also a state board of education. 
This board consists sometimes of certain state ofiicers 
ex officio. Where this is the case it rarely has much 
power, being restricted to such matters as the care of 
school lands and school funds. In other states the board 
is made up of such ex officio members, supplemented by 



education 



364 THE FUNCTIONS OF GOVERNMENT 

others appointed by the governor, or is wholly appointed 
by him. The laws of a few states provide for the repre- 
sentation on the board of different branches of the teach- 
ing profession. Most of the appointed or semi-appointed 
boards act merely in an advisory capacity to the superin- 
tendent with regard to courses of study, examination of 
teachers, selection of textbooks, etc. In Massachusetts 
and New York the board appoints the superintendent 
and through him exercises a strong central control over 
the educational system of the state. More centralized 
authority in wisely appointed state boards of education 
is very much needed throughout the country. The New 
York and Massachusetts systems seem to give the best 
results. 
Support of Besides the proceeds of land grants and bond issues, 

our public school system is supported in part by state, 
county, city, town, or district taxation. In most states 
at least half of the school revenue is derived from local 
taxes, and the proportion of revenue rises in some in- 
stances to as high as eighty or ninety per cent. Fifteen 
states raise practically nothing from the state at large 
for schools. The rest either add a definite number of 
cents on the dollar to the general property tax, or make 
a lump sum appropriation. The state school money is 
apportioned among the several localities, usually on the 
basis of school population or average attendance. State 
aid is very desirable, especially in the less settled por- 
tions of the country, in order to enable the rural schools 
to be properly maintained. Normal schools, technical 
schools, and colleges are maintained by the state in the 
same way in which it provides its share of the common 
school fund. Counties apportion among the districts 
money which they raise for the schools. The cities, 
towns, and school districts add whatever the local 



EDUCATION 



365 



school board thinks necessary, within the limit prescribed 
by law. 

Among the most interesting of the problems in the field Textbooks 
of educational administration are the matters of selecting 
and supplying textbooks. In over a score of states 
common school textbooks are adopted for the state at 
large (exception being sometimes made of certain large 
cities) by the state board of education or a special text- 
book commission. About an equal number of states 
provide for district adoption, and the remainder for 
county adoption. Adoptions are made for from three 
to six years, five years being the period in most states. 
Twelve states furnish free textbooks, at least in the com- 
mon schools. In the others the pupils must purchase 
their books. ^ 

Our compulsory-education laws are largely the counter- Compulsory 
parts of our child-labor laws. They began with the ®<*"<^^*^o^ 
Massachusetts act of 1852. Forty- two states have now 
some form of compulsory education, the exceptions all 
being in the South. These laws usually require attend- 
ance from the seventh or eighth year. Two cease to 
require it at twelve, fifteen at fourteen, nine at fifteen, 
fifteen at sixteen, and one, Idaho, at eighteen. The 
period of attendance required varies from twelve weeks 
in Virginia and Nebraska to a full school year in twenty- 
eight states. The percentage of persons ten to fourteen 
years of age who cannot read and write has, as a result 
of these laws, been greatly reduced, especially in the 

1 Fear of the publishers' overcharging the public has led to efforts to 
control the textbook trafi&c by fixing a maximum price at which they may 
be sold. Two states, California and Kansas, print their own common 
school books, usually paying the publishers a royalty for the use of the 
plates of their books. In states which thus act as their own pubHshers, 
textbooks are usually sold at cost or less than cost, any deficit being made 
up by an increase in the amount required to be raised by taxation (see 
Chapter XL). 



366 



THE FUNCTIONS OF GOVERNMENT 



Adult 
education 



Public 
libraries 



South Atlantic and South Central states where they have 
been most recently adopted.^ 

Night schools, which primarily attract persons of 
defective education who are above the ordinary school 
age, have been established in more than two hundred 
cities. Most of the instruction is in elementary classes 
in English, arithmetic, etc. Night high schools and 
vocational schools are also carried on in many cities. 
Many municipalities, among which New York is espe- 
cially notable, offer free evening lectures in the various 
school buildings of the city. These are sometimes merely 
entertaining, but a' large part of them have real educa- 
tional value. Another form of adult instruction is that 
by correspondence. Originated by private individuals 
for profit, the idea has now been adopted by the exten- 
sion divisions of our universities. 

The most pervasive and effective method of general 
education, aside from formal class instruction, is offered 
by the public library. Every community of the rank 
of village or above now has a public library. The 
county library, with its system of loans, by mail or ex- 
press, to schools, societies, and individuals, has brought 

1 Per Cent of Illiterates in Population io to 14 Years of Age 





IQOO 


1910 


United States 


7-1 
■ 9 

I.O 

17.8 

17.2 

2.8 


4.1 


North Atlantic States 


.4 


North Central States 


•4 


South Atlantic States 


lO.O 


South Central States 


lO.O 


Western States 


1.7 







The lowest percentages of child illiteracy are found in Oregon, Iowa, and 
Massachusetts, where it is but two per cent ; the highest is in Louisiana, 
with twenty-four and six tenths per cent. The high percentage of illiteracy 
in the South is due to the large negro population. 



EDUCATION 367 

library benefits to even the thinly populated sections. 
Libraries are generally administered by boards of trustees 
appointed by the city, village, town, or county appoint- 
ing authority. They receive no pay, and no better ex- 
ample can be found anywhere of high-class patriotic 
service. The actual work of administration is carried on 
by a librarian and assistants, who have usually been 
trained in one of the schools conducted in connection 
with the great libraries. Many libraries are magnificently 
housed, and the generosity of Carnegie and others has 
enabled even the smaller cities to have library buildings 
that are commodious and attractive. The support of the 
library, aside from gifts, comes usually from a portion 
of the regular city or town tax, set apart for the purpose. 

The first provision for higher education in the United Higher 
States was by endowment. The gift of his estate and ^^^^^^^^o*' 
library by the Rev. John Harvard was the starting-point 
of the first of our American colleges, and the other colleges 
of our colonial period were likewise the result of private 
benevolence.^ The balance needed for their support was 
derived from tuition fees. The first university to be called 
by the name of a state was the University of North Caro- 
lina, founded in 1795. It received state support from time 
to time, but its government was not placed in the hands of 
the state until 1875. The University of Georgia, which 
opened in 1801, and the University of Virginia, which ad- 
mitted its first class in 1825, were genuine state universities. 
The land grants in aid of higher education, of which we 
have spoken, made it the most natural thing in the world to 
establish a state university in each new state created out 
of the public domain. This was usually provided for in 
the constitution of the state. When the agricultural and 

^ Several of them, however, received aid from time to time from the colonial 
government. 



368 



THE FUNCTIONS OF GOVERNMENT 



United 
States 
Bureau of 
Education 



mechanical land grants were made in 1862, some of the 
states devoted them to special schools for agriculture 
and mechanics, but most of the Western states simply- 
added such departments to their state universities, thereby 
greatly increasing their working capital. The largest of 
the state universities now compare very favorably in 
equipment, quality of instruction, and number of students 
with the great endowed institutions.^ They are free to 
residents of the state. Non-residents must pay a moderate 
tuition fee. The state universities are governed by boards 
of regents or trustees, usually appointed by the governor, but 
in some instances elected by the legislature or the people. 
The actual management of the institution is left almost 
altogether to the president. All of the states provide "nor- 
mal" schools for the training of elementary teachers. 

The United States, aside from the maintenance of the 
Smithsonian Institution and the Congressional Library, 
of which some description has already been given (Chapter 
XXIV), is engaged in a number of educational activities. 
The military and naval academies at West Point and 
Annapolis are the government schools which will first 
occur to the average person. There are besides several 
naval training schools of lower grade than the naval 
academy. Schools are provided for the Indians under the 
direction of the Bureau of Indian Affairs. The schools for 
the natives in Alaska are conducted directly by the Bureau 
of Education, whose principal work, however, is in gather- 
ing statistics and studying the several school systems of the 
country. It has published a great number of reports, 
and while it has no power to command the educational 
authorities of any state, it has by its influence accom- 
plished much in the way of raising educational standards. 



1 The University of California ranks second to all universities in the 
United States in point of attendance, being excelled by Columbia alone. 



EDUCATION ' 369 

Among its other duties it has the supervision of the ex- 
penditure of federal appropriations for the benefit of 
colleges of agriculture and the mechanical arts. These 
institutions now receive about $2,500,000 a year from the 
United States. 

SUGGESTIONS FOR FURTHER STUDY 

Among general books reference may be made to Reed, pp. 215- 
229 (on the state administration of education). Beard, pp. 624- 
627, 746-751, and American City Government, pp. 311-333; Hart, 
A. B., Actual Government, pp. 535-554; Munro, W. B., The Prin- 
ciples and Methods of Municipal Administration, ch. ix. See also 
Encyclopedia of American Government and American Year Book. 

The leading work on educational administration is Dutton and 
Snedden, Administration of Public Education in the United States. 
A book suggesting numerous administrative reforms is Cubberley, 
E. P., State and County Educational Reorganization. The same 
author's School Funds and Their Apportionment is worthy of notice. 

On the general development of education see Draper, A. S., 
American Education, and Boone, R. G., Education in the United 
States since the Civil War; Monroe, Paul, A Textbook in the History 
of Education; Davenport, E., Education for Efficiency ; Dean, A. D., 
The Worker and the State; Leake, A. H., Industrial Education, Its 
Problems, Methods, and Dangers; McCann, M. R., Fitchburg Plan of 
Cooperative Industrial Education, U. S. Bureau of Ed. Bulletin, 1913, 
No. 50. 

Monroe, Paul, Cyclopedia of Education, is, whenever available, 
an almost inexhaustible source of information on all phases of the 
subject. 

The reports of the United States Commissioner of Education, 
the bulletins of the Bureau of Education, and the reports and other 
publications of state and local school authorities contain material 
which can be utilized. 

Topics : 

The State Administration of Education, Universities, Colleges, 
Academies, County Administration of Education, Organiza- 
tion of Local School Boards, Industrial Education, Evening 
Schools, Free Lectures, all localized as much as possible, make 
excellent topics. 



CHAPTER XXXII 



THE PRESERVATION OF PUBLIC HEALTH 



The filth 
theory of 
disease and 
its conse- 
quences 



The modern public health movement began in the 
first quarter of the nineteenth century with the develop- 
ment of what is known as the ''filth theory" of disease. 
According to this theory disease germs originated in 
decaying animal and vegetable matter, and were trans- 
mitted largely by water and through the air. It gave 
great impetus to the adoption and enforcement of strict 
laws with regard to the removal of nuisances, the build- 
ing of sewers and the sanitary disposal of sewage, the 
systematic collection of garbage and other wastes, and 
the improvement of water supplies. The activity of 
cities in the matters of sewage, garbage, and water supply 
will be discussed in a later chapter (Chapter XXXIX). It 
is sufficient for our present purpose to know that the puri- 
fication of sewage before permitting it to flow into lakes 
or streams and the proper care of water supplies did greatly 
reduce, although it has by no means eradicated, certain 
diseases, such as cholera, typhoid fever, and other intes- 
tinal complaints, the bacteria of which are carried by 
water. Indirect encouragement was given by this theory 
to the systematic isolation of persons afiiicted with con- 
tagious diseases. If by destroying filth you could destroy 
the original source of disease, and by isolating cases of 
contagious disease cut off the chance of direct infection, 
the battle against disease would be largely won. 

Unhappily, however, the efforts at city cleanHness and 
the isolation of contagious-disease patients only in a 
slight degree reduced the prevalence of disease. This 

370 



THE PRESERVATION OF PUBLIC HEALTH 371 



set the scientists to searching for a new theory as to the 
origin and transmission of disease. As now explained 
by the best authorities, most disease-producing organisms 
flourish only in the human body, living but a short 
time outside of it. Filthy conditions are more favorable 
than clean ones, but filth can no longer be considered a 
source of disease. Except in such diseases as typhoid 
fever, in which the germs are contained in large numbers 
in human excreta and are easily carried in milk or water, 
most infection comes directly from a diseased person or 
indirectly through his personal contact with the food or 
drink of the victim. The causative organisms of a few 
diseases like yellow fever and malaria are transmitted 
exclusively by insects. Tuberculosis of the bones and 
intestines may be acquired from the milk of tuberculous 
cows. The most prolific sources of infection, aside from 
polluted milk and water, are now held to be the un- 
noticed or "atypical" cases of contagious disease and 
"carriers." These last are persons who, having had a 
disease and being apparently again in good health, carry 
with them swarms of disease bacteria.^ 

This new theory with regard to the sources and modes 
of infection indicates that there are only a few diseases 
which we can hope immediately to stamp out through 
sanitary improvement in our environment. Yellow fever 
has been absolutely extirpated in Havana, where it had 



Modem 
theory of 
the origin 
and trans- 
mission of 
disease 



Triumphs of 
sanitation 



1 A striking example of this sort is found in the history of the Acme, a 
vessel sailing out of San Francisco to other Pacific Coast points. On every 
voyage one to three cases of typhoid fever developed among the crew. 
Careful investigation of the food and water supplies of the vessel failed to 
show any source of infection. Finally an officer of the state board of health 
discovered that one of the crew was a carrier. He conveyed the disease to 
his shipmates by using the common drinking cup attached to a barrel of 
water on the ship's deck. Every time he quenched his thirst, his dirty 
thumb and forefinger went into the water. He was kept several months in 
a hospital in San Francisco, but on his next voyage he infected two of his 
shipmates. 



372 THE FUNCTIONS OF GOVERNMENT 

raged for centuries, simply by destroying the mosqui- 
toes which were its sole carriers. The United States 
dug the Panama Canal without a single death from 
yellow fever, which by its awful ravages had ruined 
the French attempt. Other diseases may be stamped 

culosis 

iQii pneumonia 

iqii diarrhea 

{infants) 

IQII 

Idiph. typhoid -whooping 
the- fever ''''Sh small- 
ria jorj ^W pox 
igi4 IQII IQ14 ■ iQ/^ ■ IQ14 iQTi 1Q14 
— L- LIl L- I 

^47 45 ^30 2s 90 4 14 4 33 4 35 3 16 o 
A diagram showing what can be done when a conscientious, energetic, and 
enthusiastic physician gives his whole time to looking after the health of 
the people. This is the record of the health ofl&cer of Robeson County, 
North Carolina, who received his appointment in March, 191 2. Contrast 
the number of deaths from certain diseases, in 191 1, the year before he 
began work, and in 1914, after he had been at work three years. 

out where a definite source of the disease is known. The 
bubonic plague was destroyed in San Francisco by a 
systematic destruction of rats and other vermin, including 
the ground squirrels of the neighboring hills. 
Vaccination Where, however, the definite source of disease is not 
known, as in smallpox, and in many cases where, as in 
typhoid fever, precautionary measures are not always 
to be relied upon, the most effective means of combating 
the disease is by vaccination or inoculation. Vaccination 
for smallpox has been in use for over a century, having 
been discovered by Dr. Jenner, an Englishman, in 1796. 
The virus with which the inoculation is made is derived 
from sores on calves. Many people object to vaccination, 
but experience has shown that during the life of the vac- 
cination, — that is to say, about seven years, — it is an 



THE PkESERVATION OF PUBLIC HEALTH 373 

almost absolute preventive against smallpox. Vaccina- 
tion is compulsory for all persons in Germany and other 
European countries. In this country school children 
must usually be vaccinated before entering school and 
always in case of epidemic. By its general use smallpox, 
once one of the scourges of the world, has been reduced to 
an inconspicuous place in the roll of diseases. Vaccination 
is now practiced for typhoid fever with great success. 
Every person who by vaccination secures immunity 
from a disease protects not only himself but the community 
through which he might otherwise help to spread it. 
Diseases from the use of unclean virus were rather fre- 
quent in the early days of vaccination. The purity of 
the vaccine is now very carefully maintained under the 
regulation of the Public Health Service of the United 
States, so that at the present time there is practically no 
danger from this source. 

Of course there should be prompt report of every case Measures to 

of contagious disease and prompt measures taken for the ^® taken 

... . against 

isolation of the patient at his home or in a hospital. In- direct 

deed, it is only in this way that the majority of our ^^^^^^^o^ 
acute infections can be controlled. One of the great 
advantages of free public hospitals and dispensaries is 
that persons who are feeling badly are encouraged to 
resort to them. In this way, if the patient has a con- 
tagious disease, early notice is had of it and suitable 
measures can be promptly taken. ^ Strict laws forbid- 
ding the use of roller towels, common drinking cups, 
and other similar means of spreading infection have now 
been adopted in several states and should become univer- 

1 Cooperative medical associations, in which the subscribers are for a 
moderate fee entitled to medical attendance, if properly managed work to 
the same end. It is to the interest of the association and its physicians to 
nip every epidemic in the bud. Some form of cooperative medicine will 
probably be the outcome of the vexed question of doctors and their fees. 



374 THE FUNCTIONS OF GOVERNMENT 

sal. Medical inspection of schools has proved one of the 
most effective means yet devised for controlling the infec- 
tions of childhood, because it enables health officials to 
locate cases of disease in the early stages. 
The milk Milk, as you already know, is one of the chief foods of 

problem j^j^^ human race. During the first two years of life it is 

almost the only food. On the other hand, disease and 
other bacteria multiply rapidly in it. Under modern 
conditions a city milk supply is from twelve to forty- 
eight hours old before it reaches the consumer. Time is 
thus given for the development of the bacteria. If the 
milk is dirty when it starts, is improperly cared for in 
transit, or is handled by unclean persons at the city milk 
depot, it may well be in a condition to prove fatal to 
infant life. The work of milk inspection is mostly done by 
local boards of health. They take samples of the milk as 
it arrives in the city, and analyze them. If they show 
disease bacteria, or too many bacteria of any kind, or if 
they fall below the standard fixed by state law or city 
ordinance for good milk, the milk dealer is first warned, 
and for a second offense his license is revoked. Local 
boards of health also send their inspectors into the country 
to look into the conditions under which milk is produced. 
They examine the cattle for evidence of tul^erculosis, and 
direct reforms in methods of handling milk. Milk pro- 
duced under certain approved conditions and containing 
a high percentage of butter fat may be ''certified," in 
which case it is usually sold at a higher rate than ordinary 
milk. Many cities permit the sale of various grades of 
pure milk, provided they are clearly marked for what 
they are. State boards of health also do something in the 
way of dairy inspection. Great economy in adminis- 
tration could be secured if the whole matter of milk in- 
spection were handled by the state boards. At present 



THE PRESERVATION OF PUBLIC HEALTH 375 

the same dairy will frequently be gone over by the in- 
spectors of half a dozen cities. The Bureau of Animal 





1908 


1909 


19 10 


1911 


1912 


1913 


1914 


1915 


1700 
1600 
1500 
1400 
1300 
1200 

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1000 






















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900 
800 
700 

600 

500 
400 

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A diagram showing the number of deaths in New York State from four 
common diseases within a period of eight years. With continued good work 
by the public health officials and an increase in the understanding by the 
people of the precautions to be taken regarding scarlet fever and typhoid 
fever, the lines for these diseases will before many years reach the zero 
point. The whooping cough line will fall just as soon as the dangerous 
character of the disease is comprehended and the people join the health 
officials in efforts to control this malady. 

Industry of the Department of Agriculture has accom- 
plished much in the improvement of the health of cattle. 
In methods of dairying it has established standards which 
have had great educational value. It has, however, 



376 THE FUNCTIONS OF GOVERNMENT 

proved very difficult to secure a safe milk supply by in- 
spection and supervision, and many cities now require 
that all the ordinary market milk supplied to their 
inhabitants shall be Pasteurized before it is offered for sale. 
Pure Food The first important pure-food legislation was adopted 
and Drugs y^y Congress in 1906. This so-called Food and Drugs Act, 
which is administered by the Bureau of Chemistry of the 
Department of Agriculture, forbids, broadly speaking, 
the privileges of interstate commerce to any food or drug 
(i) which is misbranded, i.e. is not exactly what its label 
represents it to be, or (2) which contains any substance 
dangerous to health. Since 19 13 it has apphed to inter- 
state shipments of meat and meat products. Meat in- 
spection is carried on by the Bureau of Animal Industry 
under this act and under the older meat inspection acts. 
It inspects, however, only meat intended for interstate 
commerce, except where city or other local authorities 
voluntarily avail themselves of its assistance. Meat 
inspection is usually left to the local board of health and 
is conducted spasmodically. Meat rejected in one locality 
is frequently sold in another. Many of the states also 
have something in the nature of pure food laws, which 
are enforced, if at all, by the state board of health. 
The fight The disease now making the most fearful ravages among 

against ^ q^- people is tuberculosis. A comparatively small num- 
ber of those suffering from certain forms (bone and in- 
testinal) of this disease have received it from contami- 
nated milk or other animal foods. The great causes of 
the disease are bad nutrition and lack of hght and air. 
The germs of tuberculosis flourish in the dark, airless 
interior rooms of tenements. The poor tenement dwellers, 
weakened by lack of wholesome food, fall easy victims to 
it. Their own carelessness helps to spread the germs which 
swarm in the sputum of the sick. Effective combative 




Milking time in a sanitary dairy near Stamford, New York. 




Making butter in a sanitary dairy. Here are employed the most up-to-date 
butter-making devices invented. 



THE PRESERVATION OF PUBLIC HEALTH 377 

agencies are fresh air, sunshine, and good food, and 
it has been truly said that tuberculosis is a social 
rather than a medical problem. The correction of those 
economic conditions which leave a large proportion of our 
people underfed and badly housed is fundamental. In 
the meantime, good instruction will help people to do the 
best they can with what they have. Sanatoriums to 
which poor patients may be taken for recovery, to prevent 
the infection of other members of their famihes, are indis- 
pensable. Charitable assistance has its important part. 
So far, the battle against tuberculosis has been waged 
largely by private anti-tuberculosis societies. It will have 
to be won by the combined efforts of all good people. Up 
to date, only prehminary skirmishes have taken place. 
The most hopeful thing about tuberculosis is that we 
know what we have to fight and that every effort made 
shows an improvement in the situation. 

The distinctively public health work of the federal gov- The United 
ernment is carried on by the Public Health Service, a y^HeaUh"' 
bureau of the Treasury Department.^ The Pubhc Health Service 
Service has fostered scientific research into the problems 
of disease, perhaps its greatest triumph having been the 
discovery that the germ of yellow fever was carried ex- 
clusively by a certain mosquito. It has magnificent 
laboratories and a corps of forty or fifty research workers. 
Each year it holds a conference for state health authorities 
and in addition pubhshes weekly 'Tublic Health Reports," 
which contain the latest facts with regard to the prev- 
alence and distribution of disease. It is charged with 
the enforcement of quarantine regulations in the ports 
of the United States and in connection with interstate 

1 This peculiar location for such a department is to be accounted for by 
the fact that the first laws passed by the United States on the subjectof 
public health were laws ordering the customs officials to cooperate with 
state officials in enforcing state quarantine laws. 



378 THE FUNCTIONS OF GOVERNMENT 

traffic.^ It conducts hospitals and a tuberculosis san- 
atorium for seafaring men. It inspects all immigrants. 
A very important duty is the regulation of interstate traffic 
in serums, vaccines, etc., which has resulted in the estab- 
lishment of a high standard of purity in these articles. 
The work of the Bureau of Entomology of the Department 
of Agriculture, in studying the habits and characteristics 
of mosquitoes and methods of exterminating them, deserves 
notice. The Bureau of the Census also collects vital sta- 
tistics from certain "registration" areas, almost the only 
effective work of this kind which is done in the United 
States. 
State boards The first state board of health was established by 
of health Massachusetts in 1869. There are now forty-seven of 
them. They vary a great deal in their powers. Most 
of them have very considerable powers of ordering locali- 
ties quarantined for the suppression of epidemics. A 
large part of the time of all of them is taken up with the 
enforcement of the laws against nuisances. Some boards 
conduct hygienic laboratories, engage in the enforcement 
of pure food and drug laws, and gather and publish statis- 
tics and other information relating to health. Their 
power over local boards of health is very limited.^ As 
a matter of fact, the most important things which a state 
board of health can undertake are the collection of facts 

1 An illustration of the use of this latter power is found in the case of 
bubonic plague in San Francisco, when certain of the authorities of this 
city and of the state of California declared, during the first appearance of 
the plague, about 1900, that no plague existed there. The PubUc Health 
Service found that it did exist and took measures to suppress it. Since 
1903, when a new state board of health was appointed, every assistance has 
been given by the state board to the Public Health Service. 

^ Minnesota presents a striking exception to the general rule that state 
boards of health have small mandatory powers. In that state the state 
board of health may make public health regulations which, with the ap- 
proval of the attorney -general, have the force of law. It may, if there is 
no local board of health or only an inefficient one, appoint a temporary 
board. 



THE PRESERVATION OF PUBLIC HEALTH 379 

about disease and the supervision of local boards of 
health. Such supervision may be made effective simply 
by publishing comparative reports of the health condi- 
tions of different communities. State boards of health 
usually consist of physicians who serve without pay, the 
actual direction of the work being in the hands of a paid 
secretary. 

The laws of most states now generally require a board Local boards 
of health in each city or town (this board frequently is o^^®^*^ 
the city council), and impose similar but less stringent 
duties on the governing body of the county. The local 
health authority is usually obliged to keep a record of 
births and deaths, and to enforce the laws of the state 
and the ordinances of the city or county with regard to 
the removal of nuisances. It is also charged with the 
task of milk, meat, and other food inspection, the in- 
spection of plumbing, and other similar duties.^ The 
local board of health usually consists of physicians, with 
an occasional engineer or plumber, and receives no salary 
or next to none. In the larger places it acts through a 
health officer and a corps of assistants and inspectors. 
There is a tendency now to relegate the board to an ad- 
visory position and fix most of the responsibility on the 
health officer. This would seem to be in line with the 
principles of sound administration. 

SUGGESTIONS FOR FURTHER STUDY 

There is a scarcity of available literature on national and state 
health administration. The EncyclopcBdia of American Government 
and the American Year Book will supply much information. The 
reports of the bureaus and departments of the national and state 

1 An important part of the work which shohld be performed by a local 
board of health is the collection of vital statistics. Every physician should 
be required by law to report to it all cases of contagious disease. In some 
communities this gathering of facts which can afterwards be used by state 
and national authorities is well done, but too frequently it is neglected. 



38o THE FUNCTIONS OF GOVERNMENT 

governments are available and helpful. The health laws of the several 
states are collected and analyzed in Public Health Bulletin No. 54 
of the United States Public Health Service (191 2), For a criticism 
of the present method of organization of state and local health author- 
ities, see BoLDMAN, C. F., A Flan for the Reorganization of the Public 
Health Service in the State of New York, New York City Department 
of Health Reprint Series, No. 4. The boards of health of California 
and other states publish bulletins intended to make the subject 
popular. The United States Public Health Service publishes weekly 
public health reports. 

On municipal health administration, Beard, C. A., American 
City Government, pp. 261-282, is excellent. Allen, W. H., Civics and 
Health, is also useful. Godfrey, H., The Health of the City, is interest- 
ing. See also Baker, M. N., Municipal Engineering and Sanitation. 
On the milk question see Spargo, J., The Common Sense of the Milk 
Question; Rosenau, M. J., The Milk Question; and Lederle and 
Raynor, The Milk Supply of New York City, Department of Health 
Monograph Series, No. 5. On the tuberculosis question see New 
York City Department of Health Monograph Series, Nos. i and 2. 
The Milwaukee Board publishes monthly "The Healthologist," 
dealing with the subject in a very popular way. Chapin, C. V., 
Sources and Modes of Infection, is the best book on that subject. His 
large work on Municipal Sanitation is excellent but not suited to 
beginners. Hill, H. W., The New Public Health, is an excellent 
work on the possibilities and methods of controlling acute infectious 
diseases. 

Topics : 

The study of the health activities of your state and locality can 
be divided into any number of topics. 



CHAPTER XXXIIl 
THE CONSERVATION OF NATURAL RESOURCES 

Until about twenty-five years ago few people in the Early atti- 



tude toward 
natural re- 



United States had stopped to consider the possibility of 
our great natural resources ever becoming exhausted, sources 
The supply of coal, iron, petroleum, and natural gas 
appeared immeasurably great. The extent of our forests 
seemed to promise an illimitable supply of wood. After 
the soil of a certain section became exhausted, there was 
new territory without apparent limit to take its place. 
Coal, iron, oil, water power, and forests, indispensable to 
the conduct of industries, were permitted to pass into the 
hands of private owners, without any adequate compen- 
sation to the government. These things, which should 
have been used for the benefit of the whole people, were 
permitted to become the means of aggrandizement of a 
few. These few, in their mad rush for wealth, wasted 
what should have been conserved for the permanent 
prosperity of the country. It was not until 1891 that laws 
were enacted leading to the creation of a national forest 
reserve, and it was only in 1908 that President Roosevelt 
called a conference of governors, members of the House 
of Representatives and the Senate, the heads of the 
scientific bureaus at Washington, and many other scien- 
tists and notable citizens, to consider the subject of con- 
servation. Out of the deliberations of this so-called 
''White House Conference" developed the present power- 
ful movement for conservation. 

The origin of the public domain of the United States 
was the cession made by several of the states to the 

381 



382 



THE FUNCTIONS OF GOVERNMENT 



The public 
domain 



The sale of 
public lands 
under the 
early acts 



United States of the lands claimed by them west of the 
AUeghanies. It has been added to by the various acqui- 
sitions of territory in North America which ended with 
the Alaska Purchase of 1867.^ 

At the outset the public lands were looked upon as a 
source of income to the country, and Congress, by the 
Land Ordinance of 1785, established for their disposal a 
system which in its main outlines has remained unchanged 
to the present time. The ordinance provided for the 
division of the land into townships six miles square, 
which were to be again divided into sections one mile 
square. This method of subdivision has been applied in 
all subsequently acquired territory. One hah of the town- 
ships were to be sold intact to groups of settlers, as had 
been done with the New England towns. The other half 
were to be sold by sections. An act of 1800 permitted 
the settler to have five years in which to complete pay- 
ment. This credit system made for recklessness, and in 
the end the government had to pass a number of acts for 
the rehef of its land debtors. The general Preemption 
Law under which a settler, having filed a claim of settle- 
ment, might within three years acquire the land at the 
minimum price of $1.25 per acre, was in force from 1841 
to 1891. 



1 Public lands have been acquired as follows : 




State 


Year 


Land Acqitired 


Cessions of original states .... 

Louisiana Purchase 

Florida 


1803 
1819 
1846 
1848 
1850 

1853 
1867 


340,000 square miles 
875,000 " " 
70,000 " " 


Oregon 

Mexican Cession 

Texas Cession 


288,000 " " 
523,000 " " 
101,000 " " 


Gadsden Purchase 

Alaska Purchase 


6,000 " " 
599,000 " " 




Upstream face of the Roosevelt Dam, in the Salt River irrigation project, 

Arizona. 




Scene below an irrigation reservoir near Richfield, Idaho, showing a field 
irrigated by means of canals and ditches. 



CONSERVATION OF NATURAL RESOURCES 383 

In 1862 the first homestead law was passed. It gave Homestead 
any citizen of the United States the right to secure title *^^ 
to 160 acres of land (320 acres if suitable only for grazing) 
by residing on it for five years and making certain im- 
provements. An amendment adopted in 1909 reduces the 
term of residence to three years, and allows five months 
absence from the land each year. After fourteen months' 
continuous residence, title may be acquired on payment 
of $1.25 per acre. No land except mineral land is now 
disposed of except to actual settlers. The Desert Land 
Act permits the acquirement of 320 acres by actual settlers, 
if a portion of the tract is irrigated. Congress has also 
passed a number of special acts relating to particular kinds 
of land, especially coal and other mineral lands, under 
which their acquisition was easy. Free quarter sections 
are offered to old soldiers, who need only select their 
location to receive it. 

Under the Gary Act of 1894 land has been given to Reclamation 
several of the Western states in aid of their irrigation 
projects. Of greater importance is the Reclamation Act 
of 1902. This act provides that money received from 
the sale of lands in certain of the Western states shall be 
employed in irrigation projects. Within the area pro- 
posed to be irrigated, land may be taken only under the 
Homestead Act. The maximum area has been reduced 
from 160 acres to from forty to eighty acres, and in some 
instances to as low as ten. The cost of the project is paid 
by the land benefited, a period of ten years being allowed 
for this purpose. 

It is estimated that in the United States, including Where the 

Alaska, there have been at one time or another 1,700,- ^" . ^ °\ 
' " ' mam went 

000,000 acres of public land ; 924,000,000 acres were 
still in the possession of the United States on the 30th 
of June, 191 2. The accompanying table shows roughly 



3^4 



THE FUNCTIONS OF GOVERNMENT 



what disposition has been made of the remainder of this 
magnificent domain.^ Of the land remaining unappro- 
priated and unreserved, 368,000,000 acres are in Alaska, 
and the balance represents the poorest and most inacces- 
sible land in the United States. By developing great 
irrigation projects, a few million acres of this remainder 
may be made into first-class agricultural land. The bulk 
of it, however, is suitable only for grazing, and is poor 
for that. 

Of much more importance would be the knowledge of 

1 Disposition of the Public Lands of the United States* 



ACRES 



total ACRES 



(h) 



(0 

{c) 
{a) 



(a) Now held vinappropriated and unre- 
served 

Forest reservations 

Indian reservations 

National parks 

National monuments 



Total now held by the United States 

Sold under early acts 

Entered under Homestead Act . . 
Entered under Coal Lands Act . . 
Entered under Timber and Stone Act 
Entered under Timber Culture Act . 
Entered under Desert Act . . . 
Bounty land warrants to old soldiers 

Total disposed of to individuals . 
Granted to states for education . . 
Granted to states for swamp lands . 
Granted to states for railroads, etc. . 
Granted to states under Gary Act . 



682,984,000 

187,406,000 

48,326,000 

4,600,000 

1,508,000 



235,572,000 

127,846,000 

576,000 

13,059,000 
9,855,000 
6,218,000 

68,790,000 



95,766,000 

65,582,000 

61,706,000 

473,000 



924,824,000 



461,916,000 



Total granted to states 223,527,000 

(a) Granted to corporations (for railroads, 

etc.) 80,662,000 

Total disposed of 766,105,000 

* All data derived from : 

(a) Report of Commissioner-General of Land Office, June 30, 191 2, 

except as specifically noted. 
(6) Van Hise, Conservation, pp. 293-294. 
(c) Cyclopedia of American Government, vol. iii, p. 97. 



CONSERVATION OF NATURAL RESOURCES 385 

how much of the public lands has fallen into the hands 
of large corporations. Aside from the grants which were 




Principal irrigation projects in the western part of the United States. 
(Redrawn from maps furnished by the United States Reclamation Service.) 

made directly or through the states to aid railroads 
and similar enterprises, the laxity of the administration 
of the land laws enabled individuals and corporations to 
gain possession of great blocks of land at ridiculously 
low prices. The use of dummies under the Preemption 
and Homestead acts was a favorite ipiethod of the land 
grabbers. Much valuable mineral and timber land was ob- 
tained under these acts because of careless classification of 
government lands. With the growth of the conservation 
movement a new spirit has come into the administration 
of the public domain. Unhappily it is too late to save 
more than the wreck of our great national patrimony. 



386 THE FUNCTIONS OF GOVERNMENT 

Coal The most important of the mineral resources of the 

United States is coal. Coal was made by nature through 
a process which can never be repeated, and there is no 
possibiHty of increasing the source of supply except by 
the discovery of new beds. The territory of the United 
States has been very carefully gone over for coal, so that 
such new discovery is not very likely to occur. Each 
succeeding decade has shown a production of coal equal 
to the total production up to the beginning of that decade. 
If this rate of increase continues, the total coal supply 
will be exhausted in about one hundred and fifty years. 
We may, however, be comforted by the thought that we 
have seen the danger in time. Only about one tenth of 
the total coal supply of the United States has been ex- 
hausted, and a great deal can be done by encouraging 
economy in the mining and use of coal. 

Until 1873 coal lands were disposed of on the same 
terms as other public lands. Even since the passage of 
the act of that year, many milHons of acres of coal lands 
have been acquired as agricultural lands. The act of 
1873 provided for the sale of coal lands at not less than 
$10 an acre when they were more than fifteen miles 
from the railroad, and not less than $20 an acre when 
they were within fifteen miles of the railroad. For the 
twenty-three years next ensuing, the Interior Depart- 
ment sold such lands at the minimum price required by 
the law. In 1906 Secretary Garfield raised the price to 
$75 to $100 an acre. By an act passed in the same year, 
Congress provided that where land has been entered as 
agricultural land and coal is afterwards discovered, the 
government may dispose of the coal under the coal-land 
laws. In the meantime Secretary Garfield had with- 
drawn for classification by the Geological Survey over 
75,000,000 acres of supposed coal land. These withdraw- 




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CONSERVATION OF NATURAL RESOURCES 387 

als have been increased from time to time since, and 
now include most of the extremely valuable coal lands 
in Alaska. It has long been contended by those most 
familiar with the problem, that coal land should not 
be sold but should be leased at a certain royalty 
per ton. A resource so important as coal should 
be retained in the ownership of the government, 
which should dispose of nothing more than the right 
to take out coal for a given period and according to 
methods prescribed by the government. It is only in 
this way that the rights of the people can be adequately 
protected. 

The quantity of petroleum now known to exist in the oa 
United States is more limited than that of coal. While 
somewhere between eight and ten times as much petro- 
leum remains to be taken as has yet been brought to the 
surface, the increase in the total production has been so 
rapid as to indicate the complete destruction of the entire 
supply within the lifetime of persons now living. The 
surest proof of the probable failure of the supply within 
a comparatively short time is found in the rapid decline 
of the New York and Pennsylvania fields. If it had not 
been for the productivity of the comparatively new 
California and Oklahoma fields, the total production of 
petroleum must have already begun to decline. The oil 
fields having been largely in the hands of a single great 
company, which has clearly recognized the limited nature 
of the supply, oil has been produced without the exces- 
sive wastes which have marred the coal industry. For 
a long time the government made no more effort to re- 
strict the acquisition of oil lands than it did of coal 
lands. It was only toward the end of the Roosevelt 
administration that they were first withdrawn from 
private entry under the homestead laws. The principle 



388 



THE FUNCTIONS OF GOVERNMENT 



Natural gas 



Creation of 

forest 

reserves 



of leasing rather than seUing apphes to oil as well as 
coal lands. 

Natural gas, the ideal fuel, has been more wantonly- 
wasted than any other of our natural resources. A few 
years ago the waste equaled the production. In the last 
few years, however, a good deal has been done to prevent 
it. The present most important cause of waste is the 
escape of gas from oil wells. The oil operators are very 
careless of the gas found in looking for oil, generally 
letting it escape. Laws have been passed in several 
states compelling the saving of gas in these circumstances. 
The increased value of gas as a source of gasoline has also 
induced oil men to utilize it. 

Originally a large portion of the area of the United 
States was covered by forests. In the early days, the 
clearing of the land being absolutely essential to the de- 
velopment of the country, no thought was given to their 
preservation. It is only within the last twenty years 
that the public has been aroused to a realization that the 
clearing of the forests has tended to give streams an 
uneven flow, very detrimental to navigation, and to 
promote sudden and destructive floods, which cause the 
soil to be wasted from the surface of the land and cover 
parts of the lower land with debris. At the same time the 
entire destruction of our merchantable timber began to be 
imminent. In 1897 Congress created a Bureau -of Forestry 
in the Department of Agriculture, and Gifford Pinchot 
was appointed its chief. Portions of our forest lands were 
withdrawn from sale, and the area of the national forests 
has been gradually increased to 187,000,000 acres. Several 
of the states, notably Minnesota, Montana, New York, 
and California, have created reservations, totaling nearly 
10,000,000 acres. Settlement under certain conditions is 
permitted within the forest reservation, and the harvest- 




A deforested slope where the rainfall is lost. 




A forest which has been cut over and burned. 




Showing damage done by a flood in the lower course of a stream, due to 
deforestation of the watershed. 



CONSERVATION OF NATURAL RESOURCES 389 

ing of mature timber which would only diminish in value 
is provided for.^ 

The forest area owned by private individuals, however, Causes of 
is at least four times as great as that owned by the pubHc. ^^Jg^tf^g^ion 
In these privately owned forests, timber generally speak- 
ing is cut without regard to its replacement by future 
growth. The cutting of timber, even if it is done under 
the best conditions, wipes out a far greater quantity than 
can possibly be made up by natural growth. At the pres- 
ent time there are great wastes in cutting. No care is 
taken to save the new timber. All the mature trees are 
cut, leaving no seed trees, and frequently immature trees 
are cut, instead of being left to grow. High stumps are 
left, and the ground after the lumbering has been com- 
pleted is Uttered with limbs and tree tops, which greatly 
increases the danger of fires. Greater economies are 
possible also in sawmills and factories. Many trees, 
especially in the South, are destroyed to obtain a Httle 
turpentine. The most spectacular cause of waste is the 
forest fire. ' These fires destroy vast quantities of prop- 
erty, sometimes wiping out whole villages and leaving in 
their wake a trail of misery and death. The loss of prop- 
erty alone has amounted in the past to about $50,000,000 
a year. Furthermore, land which has been burned over 
two or three times becomes incapable of sustaining a good 
growth of timber. In the national and state forests fire 
patrols have been established, so that the conduct of 
campers can be regulated and fire quickly discovered. 
Lanes are cut through the forests at strategic points to 
prevent the spread of fire. After logging operations have 
been carried on, all the debris must be burned. Several 

1 The total receipts of the government from this source for the year ending 
June 30, 1913, were $2,500,000. The law requires that thirty-five per cent 
of this money be handed over to the states in which the forests are situated, 
for the improvement of their schools and other public institutions. 



390 . THE FUNCTIONS OF GOVERNMENT 

of the states have passed general fire laws, applicable to 
all forests, but most of them are not very effective. Pri- 
vate owners are only just beginning to realize the economy 
of maintaining a fire patrol. 

SUGGESTIONS FOR FURTHER STUDY 

Among the general books on government the following useful 
references may be pointed out : Beard, pp. 401-416, and Readings, 
pp. 361-374 ; Hart, A. B., Actual Government, pp. 320-341. Reinsch, 
P. S., Readings on American State Government, contains a good deal 
of information on this subject. See 2^so American Year Book. Shaler, 
N. S., The United States of America, gives much fundamental matter. 

It is impossible, however, to do much with the subject of con- 
servation without the use of some of the special works on the subject. 
The easiest of these to read are Cronan, R., Our Wasteful Nation 
(1908) ; PiNCHOT, GrFFORD, The Fight for Conservation (1910). 
Van Hise, C. R., The Conservation of Natural Resources in the United 
States (19 11), is comprehensive in its scope and very valuable. Treat, 
P. J., National Land-System (19 10), is an excellent work on the con- 
servation side of the question. Various writers on Conservation of 
Natural Resources in Annals of the American Academy, xxxiii. No. 
3, and Transactions of the Commonwealth Club of California, vol. 
7, pp. 69-314, and Roosevelt, T., The New Nationalism, pp. 49- 
76 and 77-105, may also be useful. 

The most important publications relating to this subject are, 
however : Proceedings of a Conference of Governors in the White House, 
May 13-15, 1908 (Government Printing Office) ; National Conser- 
vation Commission, Report (1909), Sen. Doc. 676, 60th Congress, 
2d Session; Commissioner-General of the Land Office Annual 
Report; U. S. Geological Survey, Mineral Resources of the United 
States. The last-named bureau also publishes reports on each metal 
separately before combining them in the bulkier report referred to 
above. See also Proceedings of the National Conservation Associa- 
tion, American Forestry Association, etc. 

Topics : 

Reports may be assigned relating to the various resources of our 
nation, and to the methods for their conservation. 



CHAPTER XXXIV 
MONEY AND BANKING 

Among the functions earliest assumed by the federal Value 
government were those relating to money. Before we 
can understand them we must first become famihar with 
the fundamental economic principle of value. At a very 
early stage of civihzation men began to exchange the 
products of their labor, a stone hammer for a dozen flint- 
headed arrows, or a beaver skin for a bundle of dried fish. 
The worth of any commodity as measured by other com- 
modities is its value. Value in this sense is always a 
relative thing. It is determined by the demand for the 
commodity and the supply of it available to meet the 
demand. If the demand is increased and the supply 
remains the same, the value will increase, but as it in- 
creases, the demand will fall off. A person who would 
demand a new hat if one could be secured for one pair 
of shoes will get along with his old hat when he finds 
that he has to give two pairs of shoes for a new one. On 
the other hand, an increase of the supply increases the 
demand by bringing the commodity within the reach of 
persons who would otherwise do without it. 

While in the most primitive society exchanges are A medium 
made by simple barter, a medium of exchange soon be- ® ^^^ *^^® 
comes necessary. You have made a coat which you do 
not need for yourself and desire to exchange for shoes, a 
hat, etc. Smith, who wants a coat, has, however, nothing 
to offer in return but ten bushels of corn. It will be very 
inconvenient for you to peddle the corn among the pos- 
sessors of the articles you desire, even if they all want 

391 



392 THE FUNCTIONS OF GOVERNMENT 

corn, which may not be the case. If, however, there is 
some commodity which is so readily exchangeable for 
other commodities that every one in the community is 
ready to take it, Smith will sell his corn for it and buy 
your coat, while you may take what Smith pays you and 
buy to suit yourself. It is desirable that this commodity 
be durable, so that it will not spoil on your hands. It 
should be capable of exact division, so that it may be 
used to measure all kinds of values. It should itself be 
so valuable that it will not require a great bulk of it to 
make a purchase. It should be plentiful enough to make 
all the exchanges that are required. Such a medium of 
exchange is called ''money." It should be of even quality 
and of a generally recognized and stable value. 
Primitive In the course of human history a great variety of things 

money have been used for money. The skins of animals, dried 

fish, cattle, corn, and tobacco are a few of many mediums 
of exchange among primitive peoples. The North Ameri- 
can Indians used wampum, the ends of black and white 
shells found on the shores of Long Island, polished and 
strung, which were much sought after as means of orna- 
ment. The baser metals, such as copper, tin, and iron, 
were early used as money. If you will reflect for a moment 
you will readily see that none of these kinds of money 
possesses the qualifications which we have laid down for 
a satisfactory medium of exchange. As soon as gold and 
silver came to be produced in sufficient quantities to be 
available for this purpose, they soon displaced all other 
forms of money. They fulfill more nearly than any other 
commodities the conditions required of a medium of 
exchange. Precious stones are too breakable and are in- 
capable of exact division. Platinum is too rare. Iron 
and the other base metals are too plentiful. Although, 
as we shall see, gold and silver are not the only substances 



MONEY AND BANKING 393 

used for money, they are the basis of the monetary system 

in all civilized countries. 

Money serves not only as a medium of exchange, but The value of 

as a measure of value. We never speak of the value of "^?^®y» 

. pnces 

boots in terms of hats or neckties, but in terms of money. 
The value of any article expressed in terms of money 
we call its "price." When a financier speaks of a ''period 
of falling prices," he means a period in which the value 
of commodities in general, as compared with money, is 
falling. Money has a value like any other commodity, 
and other things being equal, it falls or rises as the amount 
of it in circulation is increased or diminished. When 
prices are generally low, the value of money may be said 
to be high ; when prices are generally high, the value of 
money is low. If the volume of exchanges to be carried 
through increases without a corresponding increase in the 
amount of money, the eflect is, of course, the same as if 
the exchanges had remained the same and the amount of 
money had decreased. As between two kinds of money, 
the one of less value always tends to drive the other out 
of circulation. For example, suppose gold and silver to 
be circulating side by side at a ratio fixed by law. Then 
suppose a tremendous increase in the production of silver. 
The natural result is a fall in the value of silver. Silver 
will be worth more coined than as bullion, and men will 
rush to coin all the silver possible. The gold in a gold 
coin will be worth more than the silver in a silver coin 
of the same nominal value. It will be more advantageous 
to hold gold as bullion than as coin, and it will therefore 
pass out of circulation. These two economic laws, that 
the value of money varies as the amount of it in circula- 
tion and that the cheaper money always drives out the 
more costly, are very important to an understanding of 
the monetary system of the United States. 



394 THE FUNCTIONS OF GOVERNMENT 

Paper The most common coin in the American colonies was 

mone^y prior ^^^ Spanish dollar or "piece of eight." The colonists 
early fell into the error of issuing excessive quantities of 
paper money. Unable or unwilling to meet the annual 
expenses of the government by taxation, the colonists 
resorted to issuing promises to pay. There was always 
the same indisposition to lay taxes to redeem these 
promises, as to meet the original outlay. The only 
escape was to postpone the time of redemption or to issue 
new bills. The result was that the amount of this paper 
currency rapidly increased and its value as rapidly de- 
preciated. In several of the colonies the paper money- 
came to be worth little more than a tenth of coin to the 
same nominal amount. The paper currency was generally 
made ''legal tender," that is, if tendered in payment of 
a debt it had to be accepted at its face value. This was 
very advantageous for debtors. As is usually the case in 
newly settled countries, there was always a large portion 
of the population eager to take this advantage. Indeed, 
it must be regretfully admitted that the efforts of the' 
English government to put an end to these indiscriminate 
issues of paper money were among the principal causes of 
friction between the mother country and the colonies. 
It is not surprising, therefore, that when the colonies 
found themselves confronted with the necessity of armed 
conflict they promptly resorted to the printing press as a 
source of money supplies. By the beginning of 1781, a 
dollar of "Continental" paper currency was worth less 
than two cents in specie and soon ceased to have any 
value whatever. Another wave of paper-money madness 
swept the states in 1785 and 1786, but it was short-lived. 
The Constitution of the United States forbade the states 
to issue bills of credit and omitted to give any such power 
to Congress. 



MONEY AND BANKING 395 

The Constitution gave Congress exclusive power to The coinage 
'^coin money, regulate the value thereof, and of foreign 
coin, and fix the standard of weights and measures." 
Congress by the law of 1792 took the Spanish dollar as 
the basis of a decimal system of coinage. The amount of 
silver in the dollar was fixed at 3711 grains of pure 
silver. The gold eagle, or ten-dollar piece, was to contain 
2471 grains of pure gold. The ratio between silver and 
gold was therefore about fifteen grains of the former to 
one grain of the latter. This corresponded pretty closely 
to the market value of the two metals, but silver soon 
cheapened and drove the gold out of circulation. 

In 1834 and 1837 Congress passed laws changing the 
ratio, so as slightly to overvalue gold. The gold eagle 
has since contained 232.2 grains of pure gold. The 
effect of this change was slowly to displace silver, espe- 
cially after the gold discoveries of 1849 had greatly in- 
creased the world's supply of the yellow metal. The act 
of 1873 dropped the silver dollar altogether. At the time 
this raised no complaint, as the coin had long been obso- 
lete, but within three years the production of silver had 
so vastly increased as to reduce the gold value of a silver 
dollar to ninety cents. The owners of silver mines joined 
with the millions who saw in the hard times which pre- 
vailed a reason for more money. The demand for the 
remonetization of silver became so great that Congress 
passed in 1878 the so-called Bland- Allison Act, which 
provided for the purchase by the United States of from 
$2,000,000 to $4,000,000 worth of silver each month, to 
be coined into silver dollars. This did not meet the 
desires of the silverites, and in 1890 the "Sherman Act" 
required the Secretary of the Treasury to buy 4,500,000 
ounces of silver each month, paying for it in treasury 
notes issued for the purpose. This act was repealed in 



396 THE FUNCTIONS OF GOVERNMENT 

1893, and the purchase of silver bullion by the United 
States ceased.^ 

The gold coins at present in use are the eagle, double 
eagle, and half eagle. Of the silver coins, there are the 
dollar, half dollar, quarter dollar, and dime. To obviate 
the necessity of carrying awkward weights of gold and 
silver, the United States issues what are known as gold 
and silver certificates. They simply represent so much 
coin or bullion deposited in the United States treasury. 
Gold certificates are issued in denominations of from ten 
to ten thousand dollars. Ninety per cent of the silver 
certificates are in denominations of less than ten dollars. 
Except in the extreme Western and Southern states, it is 
only rarely that one sees metal money other than the 
fractional currency. The only other coins now in circu- 
lation are the "nickel" (five cents) and the bronze one- 
cent piece. 
Government As we have seen, the Constitution cf the United States 
paper money specifically denied to the states the power to issue paper 
money, and failed to give any such power to Congress. 
During the War of 181 2, following the panic of 1827, 
and in the course of the Mexican War, the United 
States issued treasury notes bearing interest, which 
were not a legal tender. A similar expedient was 
tried during the Civil War, when over a billion dollars 
of such notes were put into circulation. While these 
issues passed from hand to hand like money, they 
were really only the evidences of short-time voluntary 
loans. When the immediate crisis was past, they quickly 
disappeared. 

Of very different character were the legal- tender notes, 

1 Coinage of silver dollars came to an end in 1905. The gold dollar, which 
is the standard of our coinage system, ceased to be coined in 1890, as did 
the three-dollar piece. 



MONEY AND BANKING 397 

or '^ greenbacks," of which the issue of $450,000,000 was 
authorized by Congress during the course of the Civil War. 
The amount of specie in circulation in 1861 had been 
only about $250,000,000. It is not surprising, therefore, 
that the proportionately very large amount of greenbacks 
suddenly forced into circulation should have suffered 
depreciation. By 1864 they were worth only fifty cents 
on the dollar, measured in gold. Prices more than doubled, 
and as wages increased less than fifty per cent, a good deal 
of hardship followed. The issue of these greenbacks con- 
stituted a forced loan levied upon that portion of the 
community least able to pay it. Of course, there was grave 
doubt of the constitutional right of Congress to issue 
legal-tender paper money. The Supreme Court, in 1869, 
by a vote of five to three, held that the legal-tender acts 
were unconstitutional, and then in 1871 reversed itself 
and held them constitutional on the ground that the 
power to emit legal-tender bills was a part of the power 
to make war. By an act of 1875, Congress provided that, 
beginning with January i, 1879, the greenbacks should 
be redeemed in specie. In 1878, however. Congress 
enacted that when greenbacks were redeemed, instead of 
being permanently retired they should be reissued. The 
Supreme Court likewise upheld this act, on the ground 
that it is part of the borrowing power of Congress. To 
keep the greenbacks in circulation, and at the same time 
have them always redeemable in gold, means the perma- 
nent maintenance of a gold reserve of at least $150,000,000. 
If, as has happened on certain occasions, it falls below the 
one-hundred-million mark, the financial world becomes 
terror-stricken. 

A bank note is simply a promise to pay the amount Bank 
indicated on its face and depends for its value upon the ^°*®^ 
financial soundness of the bank issuing it. One of the 



398 THE FUNCTIONS OF GOVERNMENT 

objects which Alexander Hamihon had in mind in urging 
the creation of a Bank of the United States was to provide 
a bank-note currency which would circulate throughout 
the country, and the first and second Banks of the United 
States supplied that need. Down to the Civil War nu- 
merous banks chartered by the several states issued notes. 
These notes were supposedly redeemable in coin, but as 
the banks outside of New York, New England, and 
Louisiana were very little regulated by law, they fre- 
quently issued notes to an amount out of all proportion 
to the assets available for their redemption.^ At the 
opening of the Civil War there were about $200,000,000 
of state bank notes in circulation. They were widely 
counterfeited, and most of them passed at consid- 
erably less than their face value everywhere, except 
in the immediate neighborhood of the bank issuing 
them. 
National Partly to increase the market for United States bonds, 

and partly to provide a better paper money than that 
which had hitherto existed, it was provided by an act, 
passed in February, 1863, that banks with more than 
$500,000 capital might issue notes to the amount of 
ninety per cent of the par value of their bonds deposited 
in the United States treasury as security. The following 
year a tax of ten per cent was laid on the issues of state 
banks, which very quickly drove them out of existence. 
The only bank notes in circulation in the United States, 
up to 1 9 14, were these national bank notes. The Federal 
Reserve Act of 19 13 provides for notes to be issued by 
federal reserve banks located in twelve territorial dis- 
tricts. These notes have only just begun to be issued, 

1 There was one very notable instance in 1809, in which a bank, failing, 
proved to have outstanding $580,000 of notes and only $86.46 to redeem 
them. 



bank notes 



MONEY AND BANKING 399 

as this book goes to press, and it is, therefore, impossible 
to tell how great a volume they will reach. ^ 

The monetary history of the United States is full of Dangers of 
lessons for the citizen which must not be neglected, government 

paper 
From the days of the colonial paper issues down to the money 

present time, there has always been a very respectable 
portion of the community which has sought relief from 
the bitterness of hard times by demanding an increase in 
the circulating medium by a government paper currency 
or some similar means. Professor Bullock, in his Mone- 
tary History of the United States, shows very clearly how 
each of the movements which have resulted has been 
confined almost altogether to the newer, poorer, or more 
primitive sections of the country. It is only natural that 
when prices fall and no one seems to have any money to 
buy even at the low prices which prevail, simple-minded 
men should demand that the government increase the 
supply of money by way of the printing press. We have 
already gone deeply enough into the subject to realize 
the danger of yielding to this demand. The ease with 
which paper money can be issued by the government is 
its greatest danger. The best resolutions of moderation 
are apt to yield to the pressure for more and more money 
which always follows the failure of each successive issue 
to bring relief. The rise in prices which results from 
increase in the volume of money at first agreeably stimu- 
lates business and then brings on a wild fury of specula- 
tion. Wages increase much less rapidly than the cost of 
living, and distress ensues. Creditors find that the sums 
due them are paid in a currency the purchasing power of 
which has been diminished. The era of speculation comes 
to an end with a crash. The value of paper money then 

^ The amount of money of several kinds in circulation in the United States 
can be fovind in the World Almanac for each year. 



sound 
money 



400 THE FUNCTIONS OF GOVERNMENT 

rapidly declines with each new issue, until it has no value 
at all and quietly ceases to exist as money. In the mean- 
time, in accordance with the law which we have already 
referred to (known to economists as Gresham's Law), 
the more valuable metalhc money has been shipped 
abroad, employed in the arts, or hoarded, so that after 
the paper money has run its course there is actually 
less money than at the beginning. This truth was 
emphatically illustrated by the financial history of the 
Confederate States. If issues of government paper 
money could be scientifically controlled, the case would 
be far different, but no such control has ever been 
devised. 
Cheap vs. The same reasoning which establishes the unwisdom of 

the issuance of government paper money applies also to 
the unlimited coinage of silver. In the United States at 
the present time, gold will be coined free by the govern- 
ment from bulHon. Prior to 1873 the same privilege at- 
tached to silver. In that year the silver dollar was dropped 
from the list of authorized coins. This is sometimes spoken 
of as the " demonetization of silver " or the ''crime of 1873." 
After the repeal of the Sherman Act, the demand for the 
remonetization of silver became acute. In the presiden- 
tial election of 1896, the chief issue before the people was 
the proposition of the Democratic platform, and its can- 
didate, Mr. Bryan, to permit the free and unlimited 
coinage of silver at the ratio of sixteen to one. This was 
about the ratio on which silver had been coined under the 
Sherman Act. As a matter of fact, the actual market 
ratio between silver and gold was about thirty to one. 
The adoption of the Bryan policy would have had the 
effect of driving gold out of circulation and of depreciating 
by about fifty per cent the value or purchasing power of 
the dollar. There was much truth in the contention of 



MONEY AND BANKING 401 

the silverites that there had been a general decUne in 
prices since 1873, to the manifest disadvantage of debtors 
in general and of the great agricultural class in particular. 
This they ascribed to the absence of an adequate supply 
of money. The small supply, too, as they reasoned, made 
easier the control of the money market by the "money 
kings of Wall Street." However that may have been, a 
great increase in the production of gold took place at 
about this time, which, coupled with the increased use 
of bank credit in ordinary transactions, soon raised to 
vast proportions the effective circulating medium. Prices 
have positively soared upwards since 1896, and while 
it is impossible to say that this has been the result, 
exclusively, of a greater quantity of money, it has for the 
time being put a quietus on the desire for ''cheap" 
money. 

The most striking thing about the present currency Bank credits 
situation is the extended use of bank credit in the trans- *^ "lo^ey 
action of business. To understand how largely this has 
increased the circulating medium, it is necessary to con- 
sider the general nature of banking. Banks make their 
chief profit out of lending money or, more often, its equiva- 
lent in credit. A number of persons desiring to enter this 
business may be incorporated under the laws of the 
United States or of any state. They each put into the 
business a certain portion of their own money. This 
constitutes the "capital" of the bank. In addition it 
receives "deposits," which it holds subject to the order of 
the depositor. These orders are made by "check." 
Where the person to whom the check is payable is a cus- 
tomer of the same bank, no transfer of money takes 
place. The amount of the check is simply deducted from 
the account of one customer and added to the account of 
the other. 



402 THE FUNCTIONS OF GOVERNMENT 

The institution known as the "clearing-house" brings 
about the same result between all the banks of a given 
locality. To the clearing-house a representative of each 



^i)B^^ [IMiliPti^ii^llS^i^f^iH^ 



5-39 



-/ / %yo^,.t.ynAot^ //9/1 f^ # 7 J - 



^f- 



Paytothe 7, ' /* rf /» / 1^ s^— 7»r" 



JkAJJ. rL^A.yi^cl.i_A^ p^At^ a^^^i^—7rrB- 



^->-t-*^t^.^-*-'t-'-^ 



j'^cttA^ /._,. 73yi^..-A.'*Jtr 



A bank check, an important device in modern financial transactions for avoid- 
ing the actual transfer of currency. 

bank takes the checks on other banks which have come in 
during the day. These checks are then exchanged for 
the checks drawn on itself which are in the possession 
of other banks. Only the balances due after all the 
checks have been set off against one another are settled 
in cash. 

There is never, at any one time, enough money in the 
bank to repay all the deposits. Its capital, surplus, and 
deposits, above the "reserve" which the law, based on 
experience, requires to be kept to meet the demands of 
depositors, are loaned at interest. When a bank lends 
money, it does not deliver to the borrower a quantity of 
gold or silver or paper money. It simply gives him a 
credit on the books of the bank for the amount of the loan, 
less the discount or rate of interest. This credit he checks 
against just as if it were an ordinary deposit. Thus the 
bank can not only make loans on the basis of its actual 
deposits, but on the basis of its credit as well. So long as 
the public retains confidence in the bank's solvency, it 
may almost indefinitely enlarge its credit circulating 




The National Park Bank in New York City. 




Morning scene in the Clearing-house, New York City, where checks are 
exchanged and differences in accounts between banks are settled. 



MONEY AND BANKING 403 

medium. This is very apparent when we compare the 
total deposits of banks in the United States with the stocks 
of actual money in their possession. The total deposits 
approximate $17,500,000,000, while the actual money is 
about $1,500,000,000, or less than one to ten. The 
amount of money in circulation in the United States is 
only, in round numbers, $4,500,000,000, so that bank 
credit supphes a circulating medium four times as large as 
that offered by the nominal currency of the country. 

Of course there is grave danger in the inflation of bank Danger of 
credit unless banking operations are carried on with care *^ * °^ 
and conservatism. Undue inflation of credit means that 
when hard times come there will be a sudden contraction 
of credit which will paralyze business enterprise. An 
orchardist with an immense crop of fruit may be helpless 
without the ability to borrow money to pay for picking, 
packing, and freighting it to a market. If, in times of in- 
flation, credit is given to persons who cannot repay the 
loan, it means that in a time of retrenchment legitimate 
apphcations for credit will be denied by the bankers. 
This is what happens when the money market is said to 
be "tight," and it becomes infinitely worse in those 
panics which have occurred at somewhat regular intervals 
throughout our history. 

It is, of course, apparent that there must be some sort Banking 
of regulation of banking institutions. Otherwise ignorant, ^®^" 
careless, or unscrupulous bankers would work dreadful 
havoc, not only with the funds of the individual depositors, 
but with the whole currency situation of the country. 
The laws of the United States and of the principal banking 
states are now very strict in the conservatism they im- 
pose on the banker. National banks are required to make . 
periodical reports of their condition to the comptroller of 
the currency. The latter has under his direction a force 



404 



THE FUNCTIONS OF GOVERNMENT 



Central con- 
trol of 
banking 



of bank examiners who visit each national bank at some 
time during the year. If any dishonesty in management 
is discovered or if the ''reserve" falls below a certain 
level, the examiner has authority to close the bank, 
pending a readjustment. Certain violations of the law 
involve the loss of the bank's charter. The administra- 
tion of state banking statutes is placed in the hands of a 
state superintendent of banks, or in those of the chief 
financial officer of the state, such as the auditor or treas- 
urer. This latter arrangement is common in the smaller 
states. 

Alexander Hamilton, our first Secretary of the Treasury, 
in order to facilitate the financial operations of the govern- 
ment, to provide a place of deposit for its funds, and to 
give leadership to the banking business, induced Congress 
to create the first Bank of the United States. This bank 
played a controlhng part in the banking business of this 
country, just as the Bank of England does in that country. 
After the withdrawal of the deposits from the second 
Bank of the United States, by Andrew Jackson, the 
national government ceased to take any interest in banking 
until the National Bank Act of 1864. The unsatisfactory 
nature of state banks, as places of safe deposit, led to the 
establishment of the independent treasury system, by 
which the money of the United States was kept in the 
vaults of the treasury at Washington and in the sub- 
treasuries at New York, Boston, and other places. This 
system had the great defect of withdrawing large sums 
of money from general circulation, and keeping it piled 
up in the government vaults. Subsequent laws made it 
possible for the Secretary of the Treasury to deposit, on 
certain conditions, portions of the government's funds in 
banks. In this way he has been able to come to the 
rescue in times of financial stringency. 



MONEY AND BANKING 405 

The Federal Reserve Act of December 23, 1913, pro- The Federal 
vided for a federal rather than a centralized control of Reserve Act 
banking. Under it the country was divided into twelve 
districts, each with a federal reserve bank. The capital 
of these banks is to be provided by a subscription to the 
amount of six per cent of the capital and surplus of each 
national bank and of such state banks as avail themselves 
of the law. They are made depositaries for United States 
funds, and, as this book goes to press, it appears likely that 
they will be used as the general fiscal agents of the govern- 
ment, thus bringing to an end the independent treasury 
system. They deal, except in unusual cases, only with 
banks. Their chief function is to serve much the same 
purpose as does the great flywheel in a powerful engine. 
They are intended to steady the banking business and to 
prevent, as far as possible, the consequences of commercial 
crises or panics. For this purpose they are empowered to 
make loans to the " member banks " on the security of good 
"commercial paper," in other words of debts due the 
member banks. To make the power of the reserve banks 
to assist the member banks more certain, they are em- 
powered, with the consent of the Reserve Board, and 
upon deposit with it of commercial paper to their full 
value, to issue notes. These notes are redeemable in gold 
or currency by the bank, and by the United States as 
well. At least five per cent of the gold reserve of each 
reserve bank has to be kept in the treasury at Washing- 
ton to cover redemption there'. Each federal reserve 
bank, on receiving the notes of another reserve bank, 
does not pay them out again, but is required by the 
terms of the law to send them to the parent bank or the 
federal reserve clearing-house for redemption. 

The Federal Reserve Board consists of seven persons : 
the Secretary pf the Treasury and the Comptroller of the 



4o6 



THE FUNCTIONS OF GOVERNMENT 



The Federal 

Reserve 

Board 



Currency, ex officio, and five .others appointed by the 
President for the term of ten years. The salary of these 
appointed members is $12,000 a year, and their terms are 
so arranged that they will retire in rotation, one every 
two years. They have wide powers of supervision and 
control over the reserve and member banks and the 
general administration of the law. The initiative in actual 
banking operations is with the directors of the reserve 
banks, most of whom are chosen by the member banks. 
The final decision is with the board. Its powers are nega- 
tive rather than positive. The whole arrangement is 
apparently a happy one, for the actual conduct of banking 
operations is in the hands of bankers, while an effective 
check against fraud or carelessness is in the hands of a 
board representing the interests of the public. 



SUGGESTIONS FOR FURTHER STUDY 

The best general authority on the economic subjects touched on 
in this chapter which is available for use in schools is Taussig's 
Principles of Economics. Chs. ix to xiv on Value, xvii to xxiii on 
Money, xxiv to xxviii on Banking, and xxix to xxx on Commercial 
Crises and Panics, give very full and readable treatments of these 
subjects and represent the best American thought with regard to 
them. Bullock, C. J., Introduction to Economics, is used as a text 
in some high schools and is probably the most elementary of the 
really good books on the subject. The Monetary History of the United 
States, by the same author, gives a clear and concise account of many 
of the matters covered in this chapter. First Lessons in Finance, by 
Cleveland, Frederick A., gives a simple account of money funds, 
credit funds, the instruments of their transfer, and the organiza- 
tion of various kinds of banks. The controversy over the question 
of a central bank may be traced in standard American histories, and 
in the magazine literature of the last few years. On the Federal 
Reserve Act the "Journal of Political Economy" for April and May, 
1914, and the "Quarterly Journal of Economics" for February, 
1914, contain valuable articles. 

Teachers may also find useful : Kinley, D., Money; Laughlin, 



MONEY AND BANKING 407 

J. L., The Principles of Money; Scott, W. A., Money and 
Banking; and Conway and Patterson, Operation of the New 
Bank Act. 

In no branch of the work in "civics" can the methods of illustra- 
tion be better used than here. The class may be taught to know by- 
observation the various kinds of money in circulation. It may be 
taught banking methods by illustrative material, or even better by 
encouraging the members of the class to become bank depositors. 
(See The School Savings System, by Frank C. Mortimer, Cashier First 
National Bank, Berkeley, Calif.) An excellent idea is to utilize 
some local banker to explain the banking system and especially the 
Federal Reserve Act. A visit to the nearest clearing-house may be 
made the basis of an individual report. 

Topics : 

Colonial or Confederate Paper Money. 

The Free Silver Campaign of 1896. 

Coins of the United States. 

Paper Money of the United States. 

A Bank Account. 

A Bank Statement. 

The Clearing-house. 



CHAPTER XXXV 

THE REGULATION OF CORPORATIONS 

The cor- The typical form of organization for modern business 

poration -^ ^j^^ corporation. A corporation is an artificial person. 
In other words, it is a group of individuals associated 
together for some particular purpose which has as a 
group the right to hold property, to make contracts, and 
to sue and be sued. The members of the corporation are 
known as "stockholders" and their interest in the corpora- 
tion is represented by the shares of its capital stock which 
they own. In a simple partnership the individual partners 
are each liable for all the debts of the partnership, and in 
case of failure this liability will be enforced against whoever 
of them has any property. Stockholders in a corporation, 
however, have no liability or only a limited liability for the 
debts of the corporation, based on the amount of stock 
they own. A partnership is dissolved by the death of one 
of the partners. A corporation has perpetual succession 
(or succession for the period for which it was incorporated), 
irrespective of whatever changes of ownership take place 
in its stock. For the purpose of managing the affairs of 
the corporation, the stockholders meet once a year and 
elect a board of directors. They may also determine 
some of the larger policies of the company. The board of 
directors usually appoints a manager, to whom they 
generally give a free hand in the conduct of the business. 
The president, secretary, and treasurer are sometimes 
chosen by the stockholders, sometimes by the directors. 

Up to the time of the adoption of the Constitution of 
the United States, corporations had been created only for 

408 



THE REGULATION OF CORPORATIONS 409 

Certificate of Incorporation 

OF 

SPRING VALLEY DAIRY PRODUCTS CORPORATION 

We, the undersigned, being all of full age, and at least two 
thirds being citizens of the United States of America and at 
least one being a resident of the State of Vermont, desiring to 
form a corporation pursuant to the provisions of the Busi- 
ness Corporations Law of the State of Vermont, do hereby 
certify : 

First: That the name of the proposed corporation is 
Spring Valley Dairy Products Corporation. 

Second : That the purposes for which it is to be formed 
are as follows: [Here specify in clear terms for just what 
purposes the corporation is organized.] 

Third : That the amount of the capital stock is to be 
fifteen thousand dollars ($15,000). 

Fourth : That the number of shares of which the capital 
stock shall consist is one hundred and fifty (150) shares of the 
par value of one hundred dollars ($100) each. The amount 
of capital with which the company will begin business is 
fifteen thousand dollars ($15,000). 

Fifth : That the principal business office is to be located in 
the City of Clearwater, County of Good Hope, and State of 
Vermont. 

Sixth: That the duration of the corporation is to be 
perpetual. 

Seventh: That the number of its Directors is to be 

three. 

Eighth : That the names and post-office addresses of the 
Directors for the first year are as follows : [Here insert the 
names and addresses of the Directors.] 

Ninth : That the names and post-office addresses of the 
subscribers to this certificate, and the number of shares of 
stock which each agrees to take in the corporation, are as 
follows : [Here follow the names, addresses, and signatures 
of the stockholders in the corporation.] 

A certificate of incorporation, showing the usual form according to which 
corporations are organized. 



4IO THE FUNCTIONS OF GOVERNMENT 

Develop- extraordinary purposes for which the wealth of individ- 
mentoflaws ^g^jg ^j. partnerships were clearly inadequate, and for 
poration municipal purposes. The corporate form of organization 
proved so successful that it is now generally used in every 
business enterprise, even where some other form of organi- 
zation would do as well. A corporation originally derived 
its rights from a charter, issued by the crown in England, 
but in this country, after the Revolution, by the state 
legislature. At first these charters were issued without 
limitation as to time. The United States Supreme Court 
declared in the famous Dartmouth College Case that a 
charter was a contract within the meaning of that clause 
of the federal Constitution which denies the states the 
power to make laws "impairing the obligation of a con- 
tract." This meant that a charter granted without limita- 
tion could not be amended or revoked except by judicial 
proceedings for violation of its terms. Furthermore, the 
granting of charters by special act resulted in many 
charters being slipped through the legislature contrary to 
the public welfare. The result has been that most states 
now grant charters only under the terms of general laws. 
These laws require the fulfillment of certain conditions 
by those desiring to form a corporation and provide for 
the enforcement of these laws by a corporation commission 
or some state officer, usually the secretary of state. The 
privileges of all corporations are uniform under these 
laws, which also establish rules for the protection of the 
stockholders in the internal control of the corporation. 
The term for which the privileges of the corporation may 
be enjoyed is frequently limited, and provision is made 
for the amendment or repeal of its privileges. 
. The general corporation laws of most states provide 
that corporations shall not issue stock except for money, 
or in return for services or property actually received. 



THE REGULATION OF CORPORATIONS 411 

This is to prevent what is known as ''stock watering," or, Blue Sky 
in other words, the putting upon the market of stock of ^^^^ 
a nominal value far in excess of the actual investment, a 
practice which has resulted in gross frauds on the invest- 
ing public. Another source of fraud on investors has 
been found to be the extravagant promises of promoters. 
Kansas adopted in 191 1 an act directed at these practices, 
known as the "Blue Sky Law." It provided that no 
securities of any corporation might be put on sale without 
a permit from the bank commissioner, revocable at any 
time. In 191 2 and 19 13 nineteen states adopted similar 
laws, one or two of which have been held unconstitutional. 
To prevent the undue increase of the stock or bonded 
indebtedness of public utilities corporations, some states 
require the permission of the public utility commission 
before stock or bond issues can be made. 

The most serious of the problems of corporation regu- The "trust" 
lation are those which relate to the mammoth corporations P'°"^®™ 
which in popular language we call "trusts." These great 
combinations, while they seldom have absolute control 
over the supply of any commodity or service, frequently 
occupy such a dominant position as to be able to control 
the prices at which such a commodity or service is sold. 
Before we can go on to a discussion of the " trust" problem, 
we must consider the economic principles of monopoly 
prices and profits. 

The cost of producing any usable commodity may be Competitive 
separated into the following elements : (i) wages, which P"*^®^ 
includes not only the wages of laborers, but the compen- 
sation of the managers of the industry as well; (2) the 
cost of the tools and the materials used; (3) interest on 
the capital invested. Whatever may be left over after 
the cost of production has been repaid, constitutes profits. 
We have already seen that the value of a commodity in 



412 THE FUNCTIONS OF GOVERNMENT 

the market is determined by the relation of demand and 
supply. Where competition exists, the value of a commod- 
ity depends in the long run on the cost of production. If 
the value of a commodity is very high in proportion to its 
cost of production, the enormous profits of those engaged 
in the business will attract other enterprising persons to 
enter the field also. The supply will then be increased 
and the value fall. This will continue until the prices at 
which the commodity sells will just about repay the cost 
of production. 
Monopoly There is no such limit to the price of a monopolized 

profits commodity. It will be sold on the terms which will pro- 

duce the largest net revenue. We have seen that demand 
increases with the lowering of the price, and that it de- 
creases as the price is raised. A monopolist tries to fix the 
price at just that point where sales times price will give 
the greatest return. There may be two or more such 
points. A very high price with a few sales may bring in 
the same or greater net income as a low price and enor- 
mous sales. Which of these prices a monopolist will 
prefer depends upon the conditions which surround the 
production of his commodity. Some commodities are 
produced much more cheaply in large quantities than in 
moderate quantities. This is commonly true of the ordi- 
nary things which we use in daily life. It is in this case 
to the interest of the monopoly to fix a rather low price 
and develop a great volume of business. Thus it often 
happens that a monopoly does not treat us as badly as it 
might. On the other hand, the fact that the demand for 
the necessities of life is inelastic, i.e. does not increase or 
diminish rapidly with an increase or diminution of the 
price, gives the monopolist plenty of opportunity for 
bleeding the consumer. 

Some monopolies depend upon the control of the source 



THE REGULATION OF CORPORATION^ 413 

of supply. The Standard Oil Company furnishes a good 
example of this type. While the control of the source of 
supply by this company is not complete, it has been nearly 
enough so as to give it a practical monopoly. In the case 
of the public service corporations which supply our cities 
with gas, electricity, telephones, and transportation, com- 
petition is not impossible, but it is rarely practicable, 
first because it means a duplication of the plant, and 
secondly because, as is especially true in the case of the 
telephone, competition is injurious to the consumer. 
Still another class of monopolies depends upon the use of 
some secret process which gives them a great advantage 
over possible competitors. To this class belong those 
monopolies which are created and guarded by our patent 
laws. Secret processes and patents, for example, have had 
a great deal to do in building up such monopoHes as the 
United States Steel Corporation. There has also been a 
tendency for firms and corporations in whose business the 
cost of production diminishes with the increase of the 
scale on which it is carried on, to unite into larger and 
larger combinations. When this process of consohdation 
has left only a few great corporations in any field, it is 
easy for them to unite for the purpose of controlling the 
price of their commodity. An excellent example of 
attempted monopoly of this sort is the so-called Sugar 
Trust. Our great railway systems have developed into 
practical monopolies, partly because the cost of trans- 
portation decreases with the increase of its volume, and 
partly for those reasons of expediency which we have 
referred to in connection with municipal utilities. Com- 
petition still exists between railways and between rail- 
way and steamship lines, but it is limited to a few points 
and has ceased to be effective as a means of controlling 
railroad rates. 



414 



THE FUNCTIONS OF GOVERNMENT 



Natural 
limitations 
of monopoly 



Monopoly 
methods 



Where a monopoly absolutely controls the only source 
of supply of a commodity, an example of which it would 
be very difficult to cite, or where an absolute legal mo- 
nopoly has been secured under a patent, there is no limit 
to the monopolist's freedom to fix prices at the point most 
advantageous to himself. In all other cases, however, 
there is always a possibility of competition, a fact which 
influences far-sighted monopolists to keep their prices 
within bounds. New sources of supply of coal, copper, 
and iron have within a few years destroyed the hopes of 
certain would-be monopolists. Of course a monopoly 
which has simply been secured by the union of a few large 
producers is in a weak position. A competitor may 
spring up overnight, and there is no inherent obstacle to 
his success. There is also a limit beyond which mere 
bigness is inefficient. A monopoly in exclusive possession 
of a field of industry for a long time is apt, also, to suffer 
from dry rot. Its managers are not obliged to be efficient 
or economical. Positions may be given to favorites, and 
carelessness may come to prevail in the handling of every 
detail. This opens the way to its destruction. 

The weakness of monopolies, as we have already de- 
scribed it in the last paragraph, has resulted in their resort 
to unfair tactics in dealing with would-be competitors. 
The first method of crushing a competitor is straight 
price-cutting. The long purse of the great combination 
enables it to stand the loss until the competitor has been 
driven out. Where a competitor does only a local busi- 
ness, the monopolist will cut the prices in his neighbor- 
hood, while keeping the prices high, or even raising them, 
elsewhere. It is thus able to demolish him without loss 
to itself. Some monopolies sell their goods to retail 
dealers only on the condition that they carry their goods 
exclusively, selUng only at the price fixed by the monopoly. 



THE REGULATION OF CORPORATIONS 415 

As the monopoly goods are apt to be a well-advertised 
and popular line, many retail dealers are obliged to take 
its goods and refuse those of competitors.^ 

The English and American common law made combi- Forms of 
nations in restraint of trade, or monopolies, illegal. This ™ga^;^ation 
meant that the courts would not enforce any agreement 
for such a combination. This simple provision was for a 
long time effective in preventing the establishment of a 
monopoly. Some member of every combination was 
almost sure to be greedy enough to desert his associates. 
To get around this difficulty the Standard Oil Company 
originated what is known as a ''trust." Under this 
arrangement the stockholders of the combining corpora- 
tions made over their shares to trustees. These persons 
were to have full power to vote the stock and thus control 
the affairs of the combination. At the same time they 
were under obligation to deliver the proceeds to the origi- 
nal stockholders. This ingenious arrangement, however, 
failed to be permanently effective. The courts held that 
it was a mere sham, and refused to permit the machinery 
of the law to be abused in this way. The Congress of the 
United States and the legislatures of nearly all the states 
forbade its use. The name, however, has persisted. We 
continue to apply it to any corporation of mammoth 
proportions, whether a monopoly or not. 

The next device of would-be monopolies, and one which 
is still most in use, is that of the holding company. Cer- 
tain states permit corporations to be organized for the 
sole purpose of holding the stock of other corporations. 
The holding company, however, clearly falls within the 
prohibitions of the anti-trust laws, and if the present 

1 Formerly monopolists gained advantage over possible competitors by 
special rates or rebates from railways. This has now been stopped by the 
action of the federal government. 



Anti-Trust 
Law 



416 THE FUNCTIONS OF GOVERNMENT 

policy of the United States is adhered to it will have 
to go. 

The final stage in the development of monopoly or- 
ganization is the single giant corporation, controUing 
directly a whole field of industry. The organization of a 
monopoly in this way is more difficult than the creation 
of a holding company, but, once organized, it is safer, as 
it is much less likely to be successfully attacked under 
the anti-trust laws. 
Sherman An examination of the constitution and laws of the 

several states will show that the development of monopo- 
lies has generally been made the subject of drastic pro- 
hibition. These state laws have, however, had practically 
no effect on the great problem of monopoly. Monopolies 
are nation-wide in their extent, and can only be practi- 
cally dealt with by national legislation. The federal 
government was slow to take any steps against the growth 
of monopolistic combinations, but at length, in 1890, it 
passed the famous Sherman Anti-Trust Act. This act 
forbade combinations or conspiracies in restraint of inter- 
state and foreign trade or commerce. This was appar- 
ently a fierce attack upon the trusts, but the bark of the 
Sherman Act proved worse than its bite. New trusts 
sprang up like mushrooms on every hand. Under the 
administration of President Taft the department of jus- 
tice had some success in securing the dissolution of so- 
called trusts. The most notable of these were the Standard 
Oil and the Tobacco trusts, dissolved in 191 1. The 
formal dissolution of these combinations, however, had 
no effect on the price of oil and tobacco, and altered only 
superficially the manner of conducting these businesses. 

The utter impracticabihty of meeting the trust problem 
by means of enforcing the Sherman Act is now generally 
recognized. A combination that is too big will fall to 



THE REGULATION OF CORPORATIONS 417 

pieces of its own weight, provided competitors are given Great com- 

a fair chance. A combination which, being not too big, l>inationsof 

? capital in- 

contmues to be successful, does so by securing economies evitable and 

in the production and distribution of its commodities. <lesirable 
Such combinations have grown up as a result of the 
inevitable operation of economic laws. The economies 
are desirable, and to destroy the means by which they 
were obtained is simply to destroy what the community 
most needs. Already the old demagogic attack upon all 
great aggregations of capital as ''works of the devil" has 
given place to general recognition of the service which 
they render. Our economists and statesmen are now 
turning their attention to the problem of retaining their 
benefits and at the same time subjecting them to proper 
control. In 1903, at the suggestion of President Roose- 
velt, a Bureau of Corporations was organized in the 
Department of Commerce and Labor. The head of this 
bureau, known as the "commissioner of corporations," 
was given power of investigation into the affairs of cor- 
porations which are engaged in interstate and foreign 
commerce. This was very well as far as it went, but it 
only just touched the edge of the problem. 

The most important trust legislation in the history of Trust legis- 
the United States was adopted in 19 14 on the recommen- 
dation of President Wilson. One measure, .the Clayton 
Bill, strengthened the anti-trust laws by specifying par- 
ticular acts which should constitute restraints of trade. 
Price discrimination and " tying " contracts where they sub- 
stantially lessen competition were made unlawful. The 
new law also forbade the existence of holding companies 
where they restrain commerce or tend to establish monopoly. 
Interlocking directorates among banks with resources of 
more than $5,000,000 were prohibited. Violations of the 
provisions of the act are to be punished by fines. 



lation of 
1914 



4i8 THE FUNCTIONS OF GOVERNMENT 

Another measure, the Federal Trade Commission Law, 
provided for a commission of five members with terms of 
seven years, so arranged that only a portion of the com- 
mission retires each year. It made the commissioner of 
corporations chairman of the board, and transferred all 
the investigatory powers of the former Bureau of Cor- 
porations to the commission. One of its principal duties 
is to aid the courts, when requested, in the formation of 
decrees of dissolution. With this end in view the act 
empowered the courts to refer any part of pending liti- 
gation to the commission, including the proposed decree, 
for information and advice. The act further provided 
that "unfair methods of competition in commerce are 
hereby declared unlawful" and the commission is em- 
powered and directed to prevent the use of such methods 
by "persons, partnerships, or corporations, except banks 
and common carriers." ^ To make this power effectual, 
the commission has the additional important functions of 
initiating proceedings and making orders enforceable 
through the courts. By virtue of this power, too, the com- 
mission was given the duty of enforcing much of the 
Clayton Bill. 

SUGGESTIONS FOR FURTHER STUDY 

There has been very little written on this subject brief enough or 
elementary enough for young students. Beard, pp. 383-386, 721- 
727, and Readings, pp. 358-360, 606-600, deal with the subject 
briefly. Taussig, F. W., Principles of Economics, vol. i, pp. 199- 
217; vol. ii, pp. 107-114, 419-442, is as understandable as any of 
the general books on economics. Orth, S. P., Readings on the Rela- 
tion oj Government to Property and Ifidustry, pp. 179-221, collects 
some excellent material on this subject. A copy of the Federal Anti- 
Trust Law vnth. amendments may be obtained of the Superintendent 
of Documents at Washington, for ten cents. The corporation laws 

^ Already sufficiently watched. 



THE REGULATION OF CORPORATIONS 419 

of the several states are frequently separately published and dis- 
tributed through the secretary of state. Reference should again be 
made to the platforms of the various political parties. President 
Wilson's views are expressed in his New Freedom, and Mr, Roosevelt's 
in numerous articles in the "Outlook" during the campaign of 191 2. 
The following are excellent authorities on the trust question: 
Jenks, J. W., Trust Problem; Meade, E. S., Trust Finance; Ripley, 
W. Z., Trusts, Pools, and Combinations ; Clark, J. B., Control of 
Trusts; Walker, A. H., History of the Sherman Anti-Trust Law 
(1910) ; Department of Justice, Federal Anti-Trust Decisions (1907). 

Topics : 

The Study of Some Local Corporation. 

The Blue Sky Law. 

Enforcement of Sherman Anti-Trust Act under President Taft. 

President Wilson's Trust Policy. 

Mr. Roosevelt's Views Concerning Trusts. 

The New Trust Legislation. 



CHAPTER XXXVI 

THE CONTROL AND OWNERSHIP OF PUBLIC 

UTILITIES 

Railway, telephone and telegraph, water, gas, electric 
light and power, express, pipe-line, and street railway com- 
panies, presenting somewhat different problems from mo- 
nopolies in general, are usually grouped together as public 
utiUties. More than any other class of corporations they 
depend on special privileges conferred by the community. 
A railroad company, in order to build its line, must receive 
from the state a portion of the state's right of eminent 
domain; that is, the right by which a state or city may 
take land for pubhc purposes, paying for it a price to be 
determined by a jury. Without this right the acquisition 
of its right of way could be held up by cross-grained or 
greedy property owners. The same is true of telephone, 
telegraph, power, and pipe-line companies. Within mu- 
nicipalities, public utility corporations must have the 
right to lay their wires, rails, or pipes on, above, or under 
public streets or highways. These special privileges 
which the state or municipality gives to public service 
corporations are known as ''franchises." 
Railroads There is an enormous amount of capital invested in 

the right of way, stations, terminals, and rolling stock 
of a railroad. After these permanent investments have 
been made, the volume of business may be increased very 
greatly without additional capital outlay. Indeed, the 
cost of moving a unit of the traffic ^ may actually decrease 

1 The cost of moving one ton one mile is the usual unit employed by rail- 
roads. 

420 



CONTROL OF PUBLIC UTILITIES 421 

as the volume of business grows. This brings it to pass 
that a raihoad may well afford to carry part of its traffic 
at a rate which somewhat more than pays operating 
expenses, although entirely insufficient to pay the interest 
on the permanent capital investment. This has given 
a pecuharly bitter character to railroad competition. 
Rather than allow a competitor to get the business, a 
road can afford to take it for any price above the mere 
cost of carrying it. This has led to open rate wars and to 
private agreements with shippers, by which the latter 
secured lower rates or rebates. This situation tended 
to favor the very large shippers as against the smaller 
ones, because it was the large shippers whose business 
was most desirable. In non-competitive territory, the 
railroad, having an absolute monopoly, put its charges 
high enough to make up for the low charges made else- 
where. As almost all local traffic is non-competitive, 
it meant in general enormously high local rates and fairly 
low through rates. Between different commodities, as 
between different shippers and shipping points, the rail- 
roads have followed the principle of charging "all the 
traffic will bear." On each article the maximum rate 
which would not prevent people from shipping that partic- 
ular article has been charged. The result has been 
relatively low rates on cheap, bulky articles and high rates 
on more expensive goods. From the point of view of 
securing the maximum use of our railways, this has prob- 
ably been a wise poHcy, although it seems at first sight 

unfair. 

The first charters granted to railroad corporations State con- 
were very hberal in their terms. Frequently they were *2iroIds 
granted for indefinite periods, so that they could not be 
revoked or amended. As time went on, however, the 
states grew stricter with regard to railroad charters. They 



422 THE FUNCTIONS OF GOVERNMENT 

are now usually issued under general laws, which fre- 
quently provide that the state railroad or public utility 
commission must give a certificate of public necessity 
before the charter can be granted. In most cases no 
increase in the capital stock can be made, except with 
its approval. The idea of a state commission to exercise 
general supervising power over railroads early suggested 
The first itself. Rhode Island provided for such a commission in 
roaxTco^m- ^^39> Connecticut in 1853, New York in 1855, and Maine 
mission in 1858. In 1867, however, the only railroad commissions 
existing were those of Connecticut and Maine. With 
the creation of a railroad commission by Ohio in that 
year, the modern movement for the state regulation of 
railroads began. There are now forty-four such com- 
missions. The early commissions had in general merely 
advisory powers. The recent increase in number has 
been accompanied by an even greater increase in their 
mandatory powers. They generally have the power to 
regulate rates and to determine the character of the serv- 
ice that is to be rendered and the propriety of issues of 
stocks and bonds. The tendency in recent years has 
been to extend their powers to other public utilities, and 
a large number of them are now known as "public utility 
commissions." Their power of fixing rates is limited to 
strictly intrastate rates The power of the state railroad 
commission is further limited by the fact that the rate must 
be reasonable. Both the federal and the state courts 
have interpreted the clauses of the federal and state con- 
stitutions, which provide that no one shall be deprived 
of property without due process of law, to mean that 
rates cannot be fixed at so low a point as to become con- 
fiscatory of the property of the corporation. 

The United States first took effective steps toward the 
control of interstate railroad rates by the passage of the 



CONTROL OF PUBLIC UTILITIES 423 

Interstate Commerce Act, which was signed by the Presi- interstate 
dent, March 4, 1887. Just a month before, Congress com^^s^on 
had created the Interstate Commerce Commission as 
a bureau of the Interior Department. In 1889 it became 
an independent board reporting directly to Congress. 
It now consists of seven members, appointed by the 
President for a term of seven years. No more than four 
members can belong to the same poHtical party. Each 
commissioner receives a salary of $10,000 a year. The 
principal duty of the commission has been the enforcement 
of the Interstate Commerce Act above referred to. This 
act, as subsequently amended, provides that rates of all 
interstate carriers (this now embraces pipe-line, telephone, 
telegraph, sleeping-car, and express companies) must be 
reasonable, and forbids discrimination against persons, 
concerns, localities, or kinds of traffic. Each carrier is 
required to print its schedule of rates, and besides supplying 
copies to the commission, to post two copies in each of its 
stations or offices. No deviation from these published rates 
is allowed. No greater proportional charge for a long 
distance than for a shorter distance can be made except 
with the permission of the commission. 

The commission was given power to prescribe a uniform 
system of accounts for all interstate carriers. It was not 
originally given any power to fix rates, but since it had the 
power to order violations of the reasonable rate clause 
to cease, it assumed the right to fix what were reasonable 
rates, but was halted by the Supreme Court. By an act 
-of 1906 it was authorized to fix rates when a case came 
before the commission on the complaint of an aggrieved 
party. In 19 10 it was given power to fix maximum rates 
on its own motion, and to suspend, pending a hearing, 
any new schedule filed with it. Heavy penalties are 
established for persons or corporations guilty of making 



424 THE FUNCTIONS OF GOVERNMENT 

discriminations. A fine of $5000 a day may be collected 
from any road for violating a rate-fixing order of the com- 
mission. In 19 13 the commission was given authority 
to make a complete physical valuation of all carriers, 
subject to the Interstate Commerce Act. This will 
greatly help in fixing reasonable rates, as the enormous 
overcapitalization of the corporations misleads the com- 
mission and the public as to what rates they should fairly 
be allowed to charge. The commission has earned the 
confidence of the people. While hampered for years by 
inadequate powers, it succeeded in greatly reducing the 
abuses of which we have spoken. It has, especially since 
19 10, held a steady but moderate hand over the railways 
of the country. 
Municipal We now come to the consideration of those utilities 

franchises which make use of the streets of municipalities. Power 
to grant such franchises is possessed by every city 
subject to the limitations of its charter or of the laws of 
the state. In the early days they were granted for very 
long terms, or even without any limit, and made small pro- 
vision for the protection of the people against overcharging 
and bad service. These franchises are very valuable, and 
have been frequently secured by corrupting the city council. 
Every attempt to limit the privileges or rights of public 
utility corporations has been met in the same way. 
Privately managed public utilities have therefore been a 
very potent cause of that municipal corruption of which 
we have spoken in previous chapters. 

A device which it was once thought would help to 
prevent corruption was that of requiring proposed fran- 
chises to be advertised and awarded to that corporation 
which would pay the largest proportion of its receipts to 
the city. It has been found impossible, however, to get 
any effective competition in such bidding. It was also 



CONTROL OF PUBLIC UTILITIES 425 

thought wise to require franchise holders to pay an in- 
creasing share of their receipts to the city during the 
term of franchises. It gradually came to be the practice 
to insert in their franchises a provision that the city might 
take over the property of the corporation at the termi- 
nation of the franchise, at its physical valuation. If the 
city, however, desired to purchase the plant of the pubhc 
utihty corporation during the term of its franchise, it 
had to pay the value of the franchise as well as of the 
physical property of the concern. The last step has been 
the rather extensive adoption of "indeterminate fran- 
chises," under which the city may acquire the utihty at 
any time at its mere physical value. This power of 
acquisition has proved a most effective deterrent to bad 
conduct on the part of the corporation. On the other 
hand, if the utihty corporation gives satisfaction to the 
people, it can continue indefinitely in operation, without 
the necessity of renewing its franchise. Some authori- 
ties on franchises now advocate a final hmit even on these 
franchises. 

The attempt on the part of municipahties to control Regulation 
the rates and service of the utihties to which they have p^^^ ^t^f^ 
granted franchises has been beset with many difficulties, ties 
In the first place there have been the corrupt methods 
employed by the utihty corporations to prevent any 
action on the part of the municipahties. Where this 
obstacle has been overcome by an aroused public opinion, 
the utihty corporations have frequently been able to 
block action by an appeal to the courts.^ On the whole, 

iWe have already seen that the rates fixed by public authority must 
not be confiscatory. To prove that the rate is not confiscatory requires a 
vast deal of information. On one side of the problem is the financial con- 
dition of the corporation itself. It usually has an amount of stock and 
bonds out of all proportion to the actual investment. The usual method of 
procedure has been for the persons who obtained the franchise to sell bonds 
to an amount sufl&cient to build the utility, and then to distribute among 



426 THE FUNCTIONS OF GOVERNMENT 

municipal regulation of public utility corporations has 
proved a failure. New York, California, Massachusetts, 
Wisconsin, and several other states have given to public 
utility commissions the power to regulate utilities within 
municipalities. These state commissions have the machin- 
ery and power necessary to obtain the facts upon which 
the fixing of rates must be based. 
Municipal The ownership of public utilities by the federal or state 

ownership governments has, with the single exception of the post 
ofhce, not yet passed the stage of academic discussion. 
Municipal ownership and operation of public utilities, 
however, is in many instances already an accomphshed 
fact, and each year sees progress in this direction. The 
case for municipal ownership is somewhat stronger than 
is that for other forms of government ownership, because 
municipal utilities always derive a large part of their 
income from the use of a portion of the public property — 
the streets. Furthermore, the city is a subordinate unit 
of government possessed of many of the characteristics 
of a private corporation. It already conducts a number 
of enterprises which are very hard to distinguish in their 
nature from the public utilities with which we are dealing. 
The history of municipahties is a story of steady expan- 

themselves for sale to the investing public a large amount of stock. Upon 
the total of their stock and bond issues they have demanded the right to 
earn a fairly high rate of income. No municipality has ever had any control 
over the issuance of stocks and bonds, and only in the case of the few care- 
fully drawn franchises have they had the power to investigate the books of 
the corporation to find out its actual financial condition. On the other 
side of the problem is the great plant of the pubUc utility. To an increased 
degree, public utilities are supplied by great corporations which operate in 
many cities. An electric light company, for example, may draw its power 
from a source several himdred miles distant. To determine the value of the 
plant of such a corporation is, simply because of the expense involved, 
beyond the power of any except very large cities. With these difficulties 
in the way of obtaining the knowledge necessary to justify the reduction 
of rates, it is no wonder that the public utility corporations have been able 
to block regulation in the courts. 



CONTROL OF PUBLIC UTILITIES 427 

sion in the number of activities undertaken on behalf of 
their citizens. It is only a short time ago that roads were 
frequently private enterprises earning tolls. Sewers were 
for some time built by private capitahsts who derived an 
income from the charges they made for sewer service. 
There is Httle difference in the kind of activity involved 
in supplying sewers, streets, Hbraries, schools, and police 
protection, on the one hand, and gas, water, Hght, and 
street railway transportation on the other. The line has 
been drawn at the point where the possibility of profit 
to some individual appears. European cities have not 
drawn any such line, and they look with contempt on the 
financial policy which gives the city all the burdensome 
tasks and denies it all the income-producing enterprises. 
We have ourselves broken over the line to a considerable 
extent. Every large city in the United States except 
San Francisco owns its water supply; a great number, 
especially of the medium-sized and small cities, operate 
electric-light plants ; a few operate gas plants ; while San 
Francisco carries on a successful and popular street railway. 

It may be laid down as a general principle that public When a 
ownership is to be thought of only in the case of a mo- ^tiiityisnpe 
noponzed mdustry which has passed beyond the experi- ownership 
mental stage, and with regard to which regulation has 
failed. Government officers are slow to try the experi- 
ments and assume the risks which are essential to the 
development of a new industry.^ The supplying of gas, 
water, electric light and power, transportation, and 
telephone communications has long since passed the 
experimental stage. Barring revolutionary changes com- 
parable to the discovery of the telephone, which no one 

1 There is probably, even in an established industry, some loss in efficiency 
and progressiveness, because there is not the stimulus of the great 
personal rewards which inspire the energy of the employees of a private 
enterprise. 



428 THE FUNCTIONS OF GOVERNMENT 

can foresee, the improvements of the future will be 
along definite lines of progress already laid down. 

Assets 

Cost of Road and Equipment $5,042,331.00 

General Expenditures, Exhibit A 285,747.71 

Cash and Securities in City Treasury, Exhibit B 1,645,790.24 

Cash $1,231,789.04 

Bonds, Exhibit B 1 . . . 414,601.20 

Other Current Assets, Exhibit C 21,889.05 

$6,995,758.00 

Liabilities 

Funded Debt, Exhibit D • • • $5,475,000.00 

Contributions from Premiums on Bonds . . . 26,000.38 

Contributions from Taxes, Exhibit E . . . . 286,693.92 

Current Liabihties, Exhibit F 364,629.92 

Reserves 487,117.82 

Depreciation $454,407.07 

Compensation Insurance . . 27,045.42 

Insurance on Cars 5,665.33 

ObUgatory Charter Reserve from Taxes . . . 217,845.68 

Surplus 138,470.28 

Net Profit to June 30, 1914 . $105,306.18 
Profit, yr. ended June 30, '15 . 82,135.30 

$187,441.48 
Less Contribution to Gen'l Fund . 48,971.20 

$6,995,758.00 

Balance sheet of the San Francisco miinicipal street railway for the year 
igi4-iS, showing the profits of one public utility as operated under munic- 
ipal ownership. 

There can be no doubt that these services are best supplied 
by a monopoly. Competition means waste of capital in 
needlessly duplicated works, and in the case of the tele- 
phone positive inconvenience and added expense to the 



CONTROL OF PUBLIC UTILITIES 429 

user. The one question which remains to be settled is 
the practicabiHty of regulation. In some places it has 
failed because it was too lax and inefficient, because of 
corruption, or because of the inherent difficulties in the 
way of municipal regulation. It may fail, too, by too 
severely cutting off all chances of profit and thereby driv- 
ing private capital out of public utilities. It may fail 
because the overcapitalized condition of a utility cor- 
poration will not admit of its charging rates low enough 
to be fair to the public. Whenever these conditions exist, 
municipal ownership and operation become a feasible 
alternative. Furthermore, social considerations are 
sometimes of the first importance and municipal owner- 
ship may be justified on them alone. This is peculiarly 
true in the case of water supply, where the protection of 
public health and safety by an ample and pure supply is 
the most important consideration involved. In the case 
of the other utilities there undoubtedly is an increasing 
tendency to regard their services as necessities of life. 
Sometimes, also, a complete absence of private enter- 
prise because of the great capital expenditure involved or 
the small prospect of profit may warrant public owner- 
ship where it would otherwise be undesirable. From the 
above we may deduce another general principle, that each 
case of proposed municipal ownership must be decided on 
its own merits, by applying to it the tests just laid down. 

The success of the municipal ownership and operation The success 

of pubHc utilities has been bitterly debated and is still °* municipal 

^ . -^ , ownership 

questioned by a great number of very intelligent people, andopera- 

A few years ago the National Civic Federation appointed y°" mr^^' 

a committee, consisting half of disinterested friends and 

half of opponents of municipal ownership professionally 

identified with private plants, to investigate the subject in 

this country and Great Britain. They had the help of a 



430 THE FUNCTIONS OF GOVERNMENT 

corps of experts in gathering the facts, and on the basis of 
these facts each portion of the committee reached a dia- 
metrically opposite conclusion. This well serves to indicate 
the difficulty of answering the general question, ''Has 
municipal ownership succeeded?" Each case must be 
considered separately, in view of the local conditions sur- 
rounding it. It may be safely assumed to be true that 
municipal operation is slightly less efficient in details than 
is private operation. Many municipally owmed utilities, 
however, are operated with high efficiency, and it is to be 
believed that the general average of efficiency will improve 
as time goes on. There is, furthermore, in a municipally 
owned industry no chance for stock watering, overcapital- 
ization, and other shady dealings in finance which have 
brought so many of our privately owned utiUties to ruin. 

SUGGESTIONS FOR FURTHER STUDY 

The same difiSculty of finding suitable references on the national 
and state aspects of the subject for young students exists here as in 
the previous chapter. Beard, pp. 379-382, 727-731, and Readings, 
pp. 352-358, 609-617, touch upon it. Orth, S. P., Readings on the 
Relation of Government to Property and Industry, pp. 221-412, con- 
tains a very valuable collection of material, especially on regulatory 
commissions. See also Taussig, F. W., Principles of Economics, 
vol. i, pp. 218-224; vol. ii, pp. 363-418. Thelen, Max, Report on 
Leading Railroad and Public Service Commissions (pubHshed by 
California Railroad Commission, 191 1), is a valuable compilation. 
The Encyclopedia of American Government and the American Year 
Book give much interesting information. 

Teachers may profitably refer to Ripley, W. Z., Railroads, Rates 
and Regulations ; Johnson, E. R., American Railway Transportation; 
Daggett, Stuart, Railroad Reorganization; Meyer, B. H., Rail- 
way Legislation in the United States (1903) ; Haines, H. D., Problems 
in Railway Regulation; Vrooman, C. S., American Railway Prob- 
lems (1910) ; and reports of the Interstate Commerce Commission. 

On the municipal side there is an abundance of popular literature. 
Especially see Beard, C. A., American City Government, pp. 190- 



CONTROL OF PUBLIC UTILITIES 431 

241. The following will also be found interesting : Howe, F. C, 
The City, the Hope of Democracy, and European Cities at Work. A 
conservative view is taken by Lowell, A. L., Government of England, 
vol. ii, pp. 233-267. Set also DARWiNfL,., Municipal Ownership. 

For teachers: see Wilcox, D. F., Municipal Franchises; King, 
C. L., The Regulation of Municipal Utilities; National Civic 
Federation Report on Municipal and Private Operation of Public 
Utilities; State Regulation of Public Utilities, Annals of American 
Academy, vol. xliii. May, 19 14; Public Policies as to Municipal 
Utilities, same, vol. Ivii, January, 19 15. 

Topics : 

Arguments pro and con on the government ownership of tele- 
graphs, telephones, and railroads, or the municipal ownership 
of any of the municipal utilities, will help to make the work 
of the student interesting. The student may be assigned to 
study any of the public utilities conducted in your city. 

Some other possible topics are: State vs. Local Regulation of 
Public Utilities; The Indeterminate Franchise, etc. 



CHAPTER XXXVII 



GOVERNMENT AND LABOR 



The labor 
problem 



Trade 
unions 



The labor problem in its modern sense came into 
existence only with the development of machinery and 
methods of factory production. Up to that time manu- 
facturing industries had been carried on by independent 
artisans, usually in their own homes with the aid of a few 
apprentices. The master supplied all of the materials 
and tools necessary for the work. Every apprentice 
might reasonably hope to become a master workman and 
to maintain a shop of his own. Factory production, 
however, required the expending of very large sums of 
money in buildings and machinery, and it rapidly came to 
pass that the buildings and machinery were supplied by 
one class of men, while the labor was supplied by another. 
The workman came to be a mere hired servant dependent 
upon his wages for existence. It is easy to see that in 
this situation an individual workman was practically help- 
less against the owner of a factory. If he were dissatis- 
fied with the work, he might of course quit his employment. 
The quitting, however, of a single employee would not cause 
the owner embarrassment. In any bargain, therefore, as 
to the rate of wages to be paid or the conditions of the 
work to be done, the employer had all the advantage. 

To enable themselves to bargain on something more 
like terms of equality, the laboring men early began to 
form what are known as "trade unions." These are 
associations composed as nearly as may be of all employees 
in a given trade. The various local unions are united 
into large federated bodies to secure additional strength. 

432 



GOVERNMENT AND LABOR 433 

These unions require the payment of regular dues from 
their members, and sometimes become in this way pos- 
sessed of considerable funds. The ultimate weapon of the 
unions in dealing with employers is the ''strike," which 
is simply a concerted quitting of work by the members 
of the union. While the quitting of a single employee 
does not embarrass the employer, the sudden quitting of 
nearly all his men is a matter of the gravest consequence. 
The union, to express the matter in a different way, con- 
trols the supply of labor and is able to withhold it from 
the employer. It is thus in a position to bargain with 
him as to wages and the conditions of work. As a 
result of the activities of the unions, the position of work- 
ing men has been greatly improved. 

While the strike is the final resort of organized labor, Union 
it is only when the union is so well organized as to °^®* ^ ^ 
have a practical monopoly of the labor supply in a 
given industry that a simple strike will enable it to 
gain its point. Where unions have reached that degree 
of perfection, it is not usually necessary for them to strike 
at all, the mere threat being sufficient. It is worthy of 
note that the more powerful unions have become, the 
more conservative has become their attitude toward 
striking. In many strikes it is necessary for the union 
men to take some steps to prevent the non-union men 
from filling their places. This is usually done by "pick- 
eting." This means the posting of groups of union 
men at all the approaches to the establishment against 
which the strike is declared. The pickets sometimes 
merely argue with the non-union men who seek to go to 
work there. In other cases, however, they resort to 
intimidation and violence in order to prevent them. 
This is particularly likely to occur when strike-breakers 
have been imported from outside neighborhoods. 



434 THE FUNCTIONS OF GOVERNMENT 

Besides the strike, unions have employed another great 
weapon, the ''boycott." If they can prevent the use of 
non-union-made goods, they may force employers to em- 
ploy only union men. Goods made in union estabhsh- 
ments usually bear what is known as the ''union label." 
The unions have endeavored to teach the public to 
insist on all goods bearing this label. No good union 
man will buy any kind of manufactured product without 
it. Lists of firms regarded by the unions as unfair to 
labor have been pubhshed in their papers and the pubUc 
urged to refuse to patronize them. In the case of disputes 
with restaurants, bakeshops, and other retail estab- 
Hshments, the unions have frequently picketed these 
places against customers. Picketing in such instances is 
usually peaceful, but of course very annoying to the pro- 
prietor of the estabhshment. 

In order to promote their control of the supply of labor, 
unions have in many instances limited the number of ap- 
prentices who might be taught a particular trade. The 
movement for shorter hours of labor has been due in part 
to its effect on the labor supply. In some instances unions 
have even limited the amount of work that a man can do 
each day ; the question is often raised whether this is not 
contrary to the interests of society at large. 
Employers' The first effort of employers, looking at them as a class, 
has been to prevent the formation of unions among their 
men. Failing in this, they have resisted the demands of 
the union by a variety of means. When business con- 
ditions permit, the employer will simply close his factory 
and wait for the means of the men to become exhausted. 
This is known as a "lockout." If the employer can wait 
long enough, this method is invariably successful. The 
men must return on his terms or seek work elsewhere. 
In many instances, however, the employer is not in a posi- 



methods 



GOVERNMENT AND LABOR 43S 

tion to wait. Unless he can supply the goods which his 
customers demand, he will lose their trade and perhaps 
forfeit large sums of money for failure to fill orders already 
accepted. Under these circumstances he will try to keep his 
establishment running despite the strikers. This means 
the employment of non-union men or "scabs," as the 
strikers call them. In recent years there has grown up a 
class of professional strike-breakers, who are not infre- 
quently employed in such cases. They are usually bold 
adventurers who can stand the jeers and taunts of the 
strikers and retaliate in kind. Their employment almost 
always brings on furious industrial warfare, sometimes 
accompanied by great loss of life and property. 

In these labor struggles the law is almost all on the Labor 
side of the employer. Statutes against picketing have ^nd^helaw 
been passed in most of the states. The printing of lists 
of persons as ''unfair," or otherwise conspiring to deprive 
them of trade and custom, is illegal, both by common law 
and state statutes.^ The use of violence or intimidation 
upon a non-union man to prevent his taking the place 
of a striker is, of course, a criminal act in the eyes of 
the law. The courts have been disposed to protect the 
property of the employers against even indirect injury 
as a result of the strike. They have held that an em- 
ployer has a property right in the free flow to his es- 
tabUshment of labor, goods, and customers. They will, 
therefore, issue an injunction against union men doing 
anything to interfere with this property right. Dis- 
obedience of the injunction is contempt of court. Con- 
tempt of court is punished, not by trial by jury, but 
by the judge alone. In event of continued disobedience 

1 The employers' "blacklist" is also under the ban of the law. This 
blacklist corresponds to the "boycott" practiced by employees and is a 
list circulated among employers of those men who have been active in 
union affairs, so that, losing one job, they cannot get another. 



conciliation 



436 THE FUNCTIONS OF GOVERNMENT 

by large bodies of strikers, all the civil and military power 
of the state can be called on to enforce the injunction. 
The freedom of the courts in issuing injunctions in labor 
disputes has led to the belief on the part of the working 
class that the courts are hostile to their interests. The 
phrase "government by injunction" has been coined to 
describe the situation. Union men demand that contempt 
of court cases be tried by jury, and that the use of the 
injunction be prohibited in most labor disputes. 
Industrial There is a third party to all disputes between unions 

and employers — the pubUc, whose loss in any consider- 
able strike is very great. This is especially true where 
the strike involves some necessity of modern life, such as 
coal, railroads, or street railways in large cities. Unfortu- 
nately neither workmen nor employers are particularly 
ready to recognize the rights of the public. If there is 
ever to be any permanent, peaceful settlement of the labor 
problem, it can come only from recognition of the superior 
obhgation which the members of every class owe to 
society as a whole. It is heroic to sacrifice your own 
interests to those of your associates. It is not heroic to 
sacrifice the interests of society in general to those of 
your nearer associates. The necessity to the community 
of a permanent and just settlement of labor disputes has 
led to numerous efforts to establish some regular system 
of conciliation. The parties to labor disputes have fre- 
quently settled them voluntarily by appointing arbi- 
trators or mediators. Many agreements between unions 
and employers call for a submission of disputes to some 
body representative of both. These extra-legal methods 
of conciliation, however, do not reach all situations. 
In 1886 the states of Massachusetts and New York 
both provided for state boards of arbitration. These 
boards were to offer mediation in all strikes. They 



GOVERNMENT AND LABOR 437 

had, however, no power to force a settlement. If both 
parties were not wilHng to accept their mediation, they 
could conduct an investigation and report the findings to 
the public. Several other states have adopted laws of 
a similar nature, but with the exception of Massachusetts 
and New York, these state boards have not had any very 
considerable success. In recent years an effort has been 
made to secure the adoption in some of our states of con- 
ciliation laws modeled on those of certain of the British 
colonies. These would necessitate the submission of 
every dispute to the board of conciliation before the 
strike could be called. While the decision of the board 
is not to be compulsory in the sense of its being absolutely 
binding on both parties, the strike or lockout ordered 
after the board had rendered an adverse decision would 
inevitably be weak for lack of public support. 

A great many laws have been enacted concerning the Factory 
construction, Hghting, and sanitation of factories and the ®^*® * *°" 
proper guarding of machinery. One of the most recent 
advances in this direction is the legislation of the United 
States with regard to the materials to be used in match 
making, which was one of the most unhealthful of all the 
industries in this country. We have now matches that 
may be harder to ignite than formerly, but we should 
be willing to make such a slight sacrifice for the sake of 
the health of those engaged in the industry. Women 
and children have been especially singled out for the 
protection of the law. The first effective law in this 
country limiting the hours of labor of women was one 
passed in Massachusetts in 1876, providing that no 
woman might be employed in a factory for more than ' 
ten hours a day. Since that time all but a few of the 
states, mostly in the South or such sparsely settled states 
as Nevada, New Mexico, and Wyoming, have adopted 



438 THE FUNCTIONS OF GOVERNMENT 

some limit to the hours of labor for women and children.^ 
California has gone farthest in this direction, fixing the 
hours that women may be employed at eight hours a day 
and forty-eight hours a week. A few states forbid night 
work by women in certain industries. They are excluded 
from work in mines in most mining states, and in saloons 
and in a variety of other situations considered detrimental 
to their health. Provisions are now made in several 
states for resting periods for women during the day. Em- 
ployers are sometimes required to provide seats for women 
employees. We may thus conclude that a beginning has 
been made towards protecting women from the conse- 
quences of labor that might impair their health and their 
efficiency as mothers. 
Child-labor Child-labor legislation began in England in 1802, with 
legislation ^^ j^^ limiting the hours of labor for pauper apprentices 
in cotton mills. This was followed by an act passed in 
1 81 9, which forbade the employment in cotton mills of 
children below the age of nine years, or for more than 
twelve hours. That this was an actual limitation on 
children's labor at that time indicates the barbarous con- 
ditions which had hitherto prevailed. Our child-labor 
laws in the United States have practically all been adopted 
since 1895. The age limit in most of the states is fourteen 
years, except in some of the Southern states, where it is 
frequently twelve years. In South Carolina, Arkansas, 
Mississippi, and Alabama children under twelve may be 
employed if it is for the purpose of supporting depend- 
ent parents. The tendency is now to raise the age 
limit to sixteen years, which has already been done in 
California and a few other states. Twenty-three states 

^ Two states have an eleven-hour provision ; eight put the limit at ten 
hours a day or sixty hours a week ; eleven, at ten hours a day or fifty-four 
to fifty-five hours a week ; four have a nine-hour day, with a maximum of 
fifty-four hours a week. 




The hospital room in the National Cash Register Company's plant at 

Dayton, Ohio. 




A group of women employees in the factory of the National Cash Register 
Company, where emphasis is laid on the principle of "Safety First." Note the 
lowering of the machinery below the level of the work tables and the shades for 
protecting the eyes from particles thrown off by the wheels that operate the 
stamping machines. 



GOVERNMENT AND LABOR 439 

prohibit night work for children in factories. In order to 
make such prohibition effective, it is necessary definitely 
to fix the hours between which children shall not be 
employed. In about one half of the twenty-three states 
referred to, this has not been done, with the result that 
their laws are not effective. Late hours are generally 
allowed in agricultural districts, and in such trades as 
those of newsboys and telegraph messengers. Most 
states limit the hours of labor of young persons who may 
be employed. Ten hours a day is the usual limit, although 
New York, Illinois, and several other states make it eight 
hours. 

During the last few years attention has been very Minimum 
strongly called to the low wages paid to women and chil- ^*^® 
dren. This has been said to be a great cause of immo- 
rality, and there can be no doubt it has helped to reduce 
the physical standards of our people, by reason of the 
persistent underfeeding of these unfortunate women and 
children. These facts have given rise to a demand for the 
establishment of a minimum wage for women and children. 
Massachusetts took the lead in this matter in 191 2. 
Several states in 19 13 provided for commissions to investi- 
gate the subject with the object of providing a minimum 
wage. Boards employed to fix or recommend a minimum 
wage were provided for in Washington, Colorado, Oregon, 
California, Nebraska, Minnesota, and Wisconsin.^ 

Many modern industries as conducted in the United 
States are very productive of injury to those engaged in 

1 Utah fixed a minimum wage for women and children by law, the amount 
being seventy-five cents a day for persons under eighteen, ninety cents for 
older persons while learning a business, and $1.25 for experienced women 
workers. The method of fixing a minimum wage by legislative enactment 
must necessarily be arbitrary. What may be a satisfactory minimum 
wage in one year, under a given condition with regard to prices, will be 
entirely insufficient or excessively high the next. The alternative is to 
intrust the task to an administrative commission. 



440 THE FUNCTIONS OF GOVERNMENT 

Workmen's them. It is impossible to build a skyscraper, dig a sub- 
compensa- ^^y, or operate a railroad without loss of life. Railroads 
in the United States kill or injure every year one em- 
ployee for each mile of track they operate. The law with 
regard to the liability of employers for such injuries until 
recently was generally and in many states still remains 
as it stood in the era of household industry. Workmen 
could not recover damages from employers if the injuries 
were caused by the negligence of a fellow-servant, on the 
supposition that he was better able to guard against such 
negligence than an employer. This was sheer absurdity 
in modern industries, where the injured person may not 
even have known of the existence of the "fellow-servant." 
Furthermore, under the old law, the employee was sup- 
posed to assume the risk of all apparent defects in the 
machinery, on the theory that he could take the job or not, 
as he pleased. Under modern conditions of industry most 
people have to take the jobs they can get. The third ob- 
stacle to the employees' getting any damages from the em- 
ployers was the doctrine of ''contributory negligence." 
The conduct of the switchmen in the railway yard or the 
structural iron worker on the top of the skyscraper may ap- 
pear negligent to a ground- walking judge. Yet such "neg- 
ligence " is expected by the employer, because it is essential 
to the carrying on of the work with proper speed. 

Practically every other country in the world had recog- 
nized the injustice of such rules and had established 
some system by which workmen injured in the course of 
industry might be compensated in some degree, before 
we began to see the light in the United States. The first 
step taken in this country was the abolition by several 
states of those obstacles to the recovery of damages of 
which we have spoken above. The second step, which 
has now been taken in Wisconsin, California, and a few 



GOVERNMENT AND LABOR 441 

Other states, is that of providing that the employer shall 
compensate the workman in every case of accidental in- 
jury. The amount of compensation is fixed somewhat 
below what might have been recovered under the old 
law in a court proceeding. Some of these laws require the 
employees to contribute a portion of their wages to the 
funds from which a part of the compensation is paid. Em- 
ployers, except a few of the greater corporations, insure 
against liability to pay compensation. In some states, as 
California, the state has gone into the insurance business 
to make certain that the rates for such insurance shall not 
be excessive. 

A trade union depends for its success upon obtaining SociaUsm 
a practical monopoly of the labor supply within its field, f^^*^® 
It can be made most effective in an industry where the problem 
supply of labor is capable of Hmitation, as in any industry 
requiring skill or preparation. Such practices as the 
limitation of apprentices or the work which a man can 
do are simply methods of enforcing a monopoly. Most 
unskilled laborers have been left outside the direct benefits 
of the trade-union movement. Many workmen have 
naturally therefore yearned for some more democratic 
expression of the interests of the working class. Many 
have found this in Socialism. This party has based its 
appeal in a large measure upon class consciousness. It 
has represented itself as a working-class movement, and 
besides its doctrine of the common ownership of the 
instruments of production, it has stood for a large number 
of concrete reforms which would benefit laboring men. 
We need not be surprised, then, to find that a great num- 
ber of working men are Socialists. Generally speaking, 
however, the men in the more skilled and more highly 
paid trades, where the unions are more thoroughly or- 
ganized, are not Socialists. 



442 



THE FUNCTIONS OF GOVERNMENT 



Syndicalism 



Studies of 
the labor 
problem 



During the past few years a movement much more 
radical than even SociaHsm has made great progress. 
This is the SyndicaHst movement. There are two phases 
of it which should be noted. First, it is a method of con- 
flict. Instead of grouping men in accordance with the 
trade they practice, it groups together all men who are 
engaged in the various processes necessary to the produc- 
tion of a completed commodity. Thus all men engaged 
in the production of cotton goods, including the teamsters 
and engineers, form a single "industrial" union. The 
organization thus formed proposes to fight the employer 
with a ferocity and a disregard of law heretofore un- 
known. S^Tidicalists frequently indulge in sabotage, 
which includes the destruction of the employer's property 
even when no strike is on. Syndicalism is the most 
violent expression of class discontent which has yet ap- 
peared. Its second phase, which is a theory of the proper 
organization of economic society, is of relatively little 
importance. Such SyndicaUsts as have any theory at 
all propose that each industry should be organized inde- 
pendently on a communistic basis. 

The United States Department of Labor and Bureau 
of Labor Statistics collect and classify a vast amount of 
information concerning labor conditions. Similar work 
is carried on in most of the states by the commissioners 
of labor and other like officers, this work being frequently 
associated with the task of enforcing labor laws. Many 
boards and commissions have been created by the states 
for the purpose of investigating various phases of the 
labor problem, and a great deal of valuable information 
has been gathered by them. The greatest enterprises 
of this sort, however, have been those of the federal gov- 
ernment. In 1898 an industrial commission was created 
by an act of Congress, which reported in 1901 the result 



GOVERNMENT AND LABOR 443 

of its investigations. A large part of the seventy- two- 
volume report of the immigration commission created 
in 1907 relates to industrial conditions. An industrial- 
relations commission was created by the act of 1913, and 
engaged in an extensive investigation of the industrial 
affairs of the country. It is to be hoped that some genius 
will be developed, capable of digesting and applying in 
a statesmanlike way the vast stores of information which 
are now being accumulated. It is a very good sign indeed 
that we are awakening to a real interest in this funda- 
mental question of American life. 

SUGGESTIONS FOR FURTHER STUDY 

Beard, pp. 732-742, is especially good on this subject. See also 
Readings, pp. 617-625. The best single book on the subject which 
is of reasonable compass is Carlton, F. T., History and Problems of 
Organized Labor. Orth, S. P., Readings on the Relation of Govern- 
ment to Property and Industry, pp. 413-497, will be very valuable. 
See also Taussig, F. W., Principles of Economics, vol. ii, pp. 261- 
322. Wright, Carroll D., The Industrial Evolution of the United 
States (particularly pp. 231-320), is a valuable book for class reference. 
Somewhat more recent and practically indispensable is Bogart, 
E. L., The Economic History of the United States (2d edition, 1913), 
pp. 472-507, Mitchell, John, Organized Labor, gives a popular 
statement of the labor question and the organization and methods 
of trade unions. The Child Labor Bulletins and the American 
Association for Labor Legislation's "Legislative Review" (especially 
summary of the child labor laws, 19 10) are useful. 

The reports of the bureaus of labor of the several states and of 
their industrial accident boards, of the United States Department 
of Labor, Bureau of Labor Statistics, of the industrial commission of 
1898, and of the commission of industrial relations of 19 13, are of 
course the most important sources of information. They are, however, 
rather beyond the ability of young students. Teachers may likewise 
profitably refer to Adams and Sumner, Labor Problems; Ely, R. T., 
The Labor Movement in America; and Commons, J. R., Trade Union- 
ism and Labor Problems. Oilman, N. P., Methods of Industrial 
Peace; Clark, V. S., The Labor Movement in Australasia; Hutchins 



444 THE FUNCTIONS OF GOVERNMENT 

AND Harrison, A History of Factory Legislation (1907). Webb, 
Sidney and Beatrice, Industrial Democracy (1902) and History of 
Trade Unionism (19 11), are the best works on the labor movement 
in England. 

Topics : 

Discussions, in which several pupils may take part on each side, 
of the following questions: ^^ Resolved, That labor unions have 
been a benefit to the United States as a whole"; ^'Resolved, 
That the open-shop system promotes the best interests of any 
community" ; ^'Resolved, That the New Zealand form of com_ 
pulsory arbitration or something similar should be adopted in 
the United States," will promote interest. Reports may also 
be required on the laws of your own state with regard to picket- 
ing, child labor, hours of labor, minimum wage, workmen's 
compensation, etc. 



CHAPTER XXXVIII 
IMMIGRATION 

Very closely allied to the subject of the last chapter is The problem 
that of immigration. It is through immigration that gration*' 
the millions of strong arms necessary for the development 
of our vast natural resources have come. On the other 
hand immigration has brought to this country many 
persons unfit in body and mind to become good citizens. 
Grave questions have arisen as to our ability to assimilate 
the races which have been arriving in greatest numbers 
during the last ten years, and as to what will be the effect 
upon our race if we do assimilate them. Serious economic 
problems have grown out of the exploitation of unskilled 
immigrant labor by certain of our great monopolies. 
Strikes and other manifestations of social unrest have 
increased in frequency because of this situation. We 
may well stop to consider the subject of immigration, and 
our means for handling it. 

In 1820, when the statistics of immigration first began Volume of 
to be regularly recorded, the population of the United ii^^^gration 
States was homogeneously English. Between 1820 and 
1910, 27,918,000 immigrants came to the United States. 
More than a million have arrived in each of several recent 
years. The population of the country has, however, in- 
creased to such an extent that a million immigrants to-day 
is a smaller proportion of our total population than were 
the 310,000 people who came to our shores in 1850. About 
one fourth of the immigrants now coming to America 
return to Europe after a few years of residence. The 
proportion of foreign-born white persons to the total 

445 



446 



THE FUNCTIONS OF GOVERNMENT 



Races in 

American 
immigration 



population of the United States was slightly lower in 1910 
than in 1870. The proportion of those born in this country 
of foreign or mixed parentage showed a considerable 
increase.^ 

The history of immigration since 1820 naturally falls 
into three periods. First came the Irish period, extend- 
ing from 1820 to 1855. It reached its climax between 
1846 and 1 85 1, during which years 1,200,000 persons 
arrived from Ireland. The second or Germanic period 
extends from 1855 to 1890. During this time about 
4,500,000 Germans came to the United States. The 
third period may be called the Slavic-Italian-Hebrew 
period. It extends from 1890 to the present day. The 
Italians, of whom upwards of three millions have come 
to the United States, are mostly from southern Italy and 
Sicily. An even larger number of Slavic peoples have 
come from southeastern Europe. A vast number of 
Jews, from 50,000 to 150,000 a year, have been driven 
from Russia by the persecutions in that country. If we 
turn back through the files of the newspapers and maga- 
zines we shall find that each new set of immigrants has 
been received with suspicion. It is undeniable, however, 
that the assimilation of recent immigrants is more difficult 
than that of their Irish and German predecessors. It is 
equally undeniable that on the score of illiteracy, crimi- 



1 Percentage of Foreign-born White Persons, etc., to the Total 
White Population 



Foreign-born . 
Native-born 
Foreign parentage 
Mixed parentage 



I9I0 


1900 


1890 


1880 


16.3 


iS-3 


16.6 


I5-I 


83-7 


84-7 


83.4 


84.9 


15-8 


15-9 


14.7 


14.7 


7-3 


7.5 


6.2 


4.4 



1870 



16.4 

83.6 

12.4 

3-4 



IMMIGRATION 447 

nality, etc., the new immigration compares unfavorably 
with the old. 

One of the most unfortunate aspects of immigration Congestion 

1 , • e • • i • of immi- 

at the present time is the congestion of immigrants m g^ation 

the large cities. Still worse, this foreign element tends to 
settle together in certain districts of each city. It is 
natural for them to seek the companionship of those of 
their own race and language. This race grouping has 
had, however, a very bad effect upon our city governments, 
by preventing the formation of a general municipal pubhc 
opinion. Unless the whole population of a city has some- 
thing like a common ideal with regard to pubhc problems, 
it is very difficult to get any righteous decision of pubhc 
questions out of it. 

Various efforts have been made to secure the distribution Distribution 
of our immigrants throughout the country. Men who 
would be of great value in an agricultural region where 
labor is scarce, are only a menace in the crowded slums 
where there is already a surplus of labor. Several of our 
states have organized immigration commissions, the pur- 
pose of which is to look after the physical and mental 
well-being of the immigrant. They see that he is not 
cheated, that he is properly housed, and if possible they 
send him where his labor is in demand. All that can be 
done, however, in the way of distributing the immigrants 
is to explain to them the advantages of the location to 
which you wish them to go. Under our Constitution 
and laws, they cannot be made to go unless they wish to. 
It is true that while the compactness with which immi- 
grants are massed in city slums tends to retard assimila- 
tion, the forces that make for assimilation are far greater 
in the city than in the country. Schools, lectures, news- 
papers, pohtics, and the rush and struggle of everyday 
life Americanizes the immigrant with great rapidity. 



448 THE FUNCTIONS OF GOVERNMENT 

Immigrant families in the comparative isolation of farm 
life retain for a much longer time their racial charac- 
teristics. 
Immigration During the colonial period nothing was done in the 
legislation ^^y ^f putting legal restrictions on immigration. Every- 
one who came was welcome. Indeed, so long and dan- 
gerous was the passage from Europe to America that 
only the strong and brave cared to undertake it. Further, 
great as was the promise of the New World to those who 
could stand hardship, there was little about it to attract 
any others. The result was that the early immigration 
to this country was restricted by natural causes to those 
best fitted for the conditions of our life. It was not until 
1819 that the United States passed its first law relative 
to immigration. This act made some improvement in 
the conditions of steerage passage and provided for the 
keeping of statistics of immigration. About the same 
time the states of the Atlantic seaboard began to notice 
that the stream of immigrants brought with it numerous 
paupers, criminals, insane, and otherwise undesirable 
persons, likely to become a source of expense and trouble 
to the community. To meet this situation the states en- 
acted laws providing for a small tax to be paid by the ship- 
owner on each immigrant brought in and requiring him to 
give bond that they would not become public charges within 
a certain time. In spite of the agitation of the Know- 
nothing or Anti-Foreign party, these laws remained 
practically all the legislation with regard to immigration 
down to 1882. In 1876 the Supreme Court of the United 
States, reversing its former decisions, held that under the 
commerce clause of the Constitution exclusive control 
over passenger as well as freight traffic belonged to Con- 
gress.^ The act of 1882, which was adopted to care for 

1q2 U. S. 259. 



IMMIGRATION 449 

the situation created by this decision, laid a tax of fifty 
cents on each immigrant and excluded from admission 
convicts (except poHtical offenders), lunatics, idiots, and 
persons likely to become a public charge. 

The act of 1891 provided the present machinery of Present 
enforcement for our immigration laws by creating the ? ^*"^ ° . . 
position of Superintendent, since changed to Commis- laws 
sioner-general, of Immigration, and putting under him 
a full corps of officers to carry out the law. This act 
also established the patrol of the Mexican and Canadian 
borders. Since 1907 the head tax has been four dollars. 
Under the law of this latter year, the following classes of 
persons are excluded : (i) Idiots, imbeciles, and feeble- 
minded persons; (2) epileptics; (3) insane persons; 
(4) paupers ; (5) persons likely to become public charges ; 
(6) persons afflicted with tuberculosis or with any loath- 
some or contagious disease ; (7) persons who are other- 
wise physically or mentally deficient in such a way as to 



affect their earning capacity; (8) convicts, except those 
convicted of purely political offenses; (9) polygamists; 
(10) anarchists; (11) prostitutes or those bringing in 
prostitutes; (12) contract laborers (this does not include 
professional people, skilled laborers, or domestic servants) ; 
(13) assisted persons, unless they can show that they do 
not belong to any excluded class; (14) children under 
the age of sixteen years unaccompanied by their parents, 
at the discretion of the Secretary of the Department of 
Labor. 

The Chinese began coming to California with the gold oriental 
rush in 1849. They were at first welcomed by the early exclusion 
settlers of the country, but when their numbers increased 
with great rapidity and they began to compete success- 
fully with the whites in mining and farming and as 
domestic servants, the sentiment of the white population 



45© THE FUNCTIONS OF GOVERNMENT 

turned against them. In 1882, as a result of California 
agitation, Congress passed an act prohibiting the im- 
migration of Chinese laborers for a period of ten years. 
This act was amended in 1884, and still stricter laws 
have been passed at intervals since. The result of these 
acts is the exclusion of Chinese except merchants, students, 
and travelers. Under the operation of these laws, the 
number of Chinese in the United States has steadily de- 
creased, until they no longer constitute any serious 
problem, even on the Pacific Coast. 

About 1905, however, increasing immigration from 
Japan aroused on the Pacific Coast a similar feeling to 
that which had been earlier aroused by the Chinese im- 
migrants. The United States met this situation by 
securing from the Japanese government a "gentlemen's 
agreement," by which Japan agreed not to issue passports 
to continental United States, except to non-laborers, or 
such laborers as had been in the United States before, or 
who came to join a parent, wife, or child, or to take an 
active control of farming enterprises in this country.^ 
The presence of the Japanese, especially in California, 
has continued, however, to be a serious problem. In 
191 3, the state of California adopted a law forbidding the 
ownership of real estate by Japanese. The Japanese 
protested against this legislation as a violation of their 
treaty rights, and up to the date of the writing of this 
book the matter had not been settled. 

The last phase of Oriental immigration has been that 
from British India. Large numbers of Hindus have 
entered the United States in the past four or five years, by 
way of the Pacific Coast, and their coming has aroused 

1 The President, under authority given by Congress, has refused admis- 
sion to continental United States to Japanese or Korean laborers from 
Canada, Mexico, and Hawaii. 



of immi- 
grants 



IMMIGRATION 451 

intense opposition among a portion of the native popula- 
tion. Very many of them have been excluded, however, 
under one pretext or another, by the immigration officers 
at San Francisco and other ports. 

For the enforcement of the immigration laws, every Inspection 
shipowner is required to furnish certain information with 
regard to each immigrant passenger. These data furnish 
the basis for the work of the inspector who meets the immi- 
grants on landing. Upwards of two thirds of our immi- 
gration comes in through the New York gateway, and 
is dealt with at the immigration station on Ellis Island. 
Here the immigrants are first obliged to pass in single file, 
twenty feet apart, between medical examiners, who mark 
for further examination all those who are not obviously 
healthy. Each immigrant is then obliged to answer a 
series of questions bearing upon his eligibility.^ If he 
passes through this examination satisfactorily, the eyes of 
the immigrant are examined. If certain diseases are 
discovered, especially trachoma, he will be excluded. 
Those who have satisfactorily passed the tests up to this 
point are then ready for admission, and are sent to New 
York, or delivered to the railroads in accordance with 
their announced destination. Of the remainder, those 
as to whose case any doubt exists are examined by an 
inquiry board. If this board decides against them, they 
may appeal to the Commissioner-general of Immigration 
or to the courts. Those who are denied admittance are 
deported at the expense of the steamship company which 

1 Under the provision excluding those who are likely to become a public 
charge, the Bureau of Immigration has considerable discretion. If a person 
is over fifty years of age, a single woman, a child, or otherwise of such phys- 
ical or mental weakness as to make it problematical whether he can earn 
his living or not, he is likely to be rejected unless he is coming to join mem- 
bers of his family in this country, who will be responsible for his support. 
If an immigrant has less than $50 in money in his possession, he is also made 
the subject of particular scrutiny. 



452 



THE FUNCTIONS OF GOVERNMENT 



Further pro 
posed re- 
striction of 



brought them over. In 1912-13, 1,197,892 were admitted 
and 19,938 excluded. It is thus apparent that our present 
immigration laws are not of a very restrictive character, 
although they do tend to keep out those most obviously 
unfitted for American citizenship. 

Further restriction of immigration has been widely 
advocated. Many persons see in the vast horde of 
immigration Europeans who seek our shores each year a menace of 
tremendous proportions. Among the methods of restric- 
tion which have been proposed, the one most favored is 
the "literacy test," i.e. that each immigrant should be 
able to read and write some language. The effect would 
be to exclude large numbers of farm laborers who come 
from eastern and southeastern Europe. Congress has 
three times passed bills embodying the literacy test, which 
have been vetoed by Presidents Cleveland, Taft, and 
Wilson, respectively. The chief objection to it is that it 
would exclude the rugged, healthy farm laborers, whose 
strong arms are needed in the development of our vast 
stretches of vacant land, while it would admit the less 
sturdy element from the cities. Another method sug- 
gested for restricting immigration has been a large head 
tax. The objection to this is that it is entirely unfair 
in its discrimination. What we need in our immigrants 
is good health and vigor, rather than the possession of 
money. Still a third method of restriction provides for 
admitting each year no more immigrants of any nationality 
than will equal ten per cent of the total number of persons 
of that nationality then in the United States. Five 
thousand would be allowed of each nationality irrespec- 
tive of its numbers in this country. This measure would 
greatly reduce the number of Slavs, Italians, and He- 
brews, the races which are now coming to this country 
in greatest numbers. It is, of course, as purely arbitrary 




Judging the mentality of an immigrant boy at Ellis Island by the time it 
takes him to put blocks of different shapes in the corresponding compart- 
ments of the form board. 




The main waiting room at Ellis Island, decorated for the Christmas holidays. 
Immigrants are separated by the partitions into different lots for facilitating 
the work of inspection. 



IMMIGRATION 453 

a method of restricting immigration as either of the others 
mentioned and would present serious difficulties in ad- 
ministration. 

The real causa of immigration has been the better op- Future 
portunities for making a living in this country. The "^^iigration 
advantage of the United States in this respect was of 
course much greater up to forty years ago than it is now. 
While, however, the advantage of coming to America 
has been decreasing, the difficulty of coming has been 
diminished to a far greater extent. Six days in an ocean 
steamship in comfortable steerage quarters has replaced 
the horrors of the old-time immigrant ship. At the same 
time information concerning America has been widely 
distributed throughout Europe. The steamship com- 
panies have been very persistent in their advertising, and 
have held out glowing promises of congenial work at high 
wages in our country. Scarcely a village of Europe is 
so small that it has not its steamship agent. What the 
immigrant finds when he reaches this country is frequently 
disappointing. Many of them come only with the in- 
tention of remaining a comparatively short time. Others, 
discouraged, are glad to return, especially in the years 
when times are hard in this country. Immigrants will 
continue to come to the United States, unless they are 
prohibited by law, until there is no longer any advantage 
in coming. While we cannot regard our present immigra- 
tion with complacency, the majority of the immigrants, 
of whatever race, make good citizens. We have already 
taken steps excluding those races which are quite unas- 
similable, such as the Chinese, Japanese, and Hindu. In 
the absence of a just and practical means of restricting 
immigration from Europe, we must try in every way to 
Americanize the newcomers. To this end we must treat 
them sympathetically. Wholesale condemnation of im- 



454 THE FUNCTIONS OF GOVERNMENT 

migrants is unworthy of a people all of whose ancestors 
were more or less recent immigrants. We must create 
and heartily support organizations or governmental de- 
partments to distribute and care for immigrants. We 
should look upon them as responsibilities of the first order. 
Their future usefulness in large measure depends upon 
the treatment they receive and the example set before 
them in their new home. 

SUGGESTIONS FOR FURTHER STUDY 

There are many books on the subject of immigration, but there is 
no subject where we can more easily separate the few best from the 
remainder. The Report of the Immigration Commission (191 1) in 
forty-one volumes has of itself made useless almost every book 
written before that time. The essentials of this vast work are con- 
tained in the first two volumes, which may be obtained at moderate 
expense from the Superintendent of Documents. The best book is 
Fairchild, H. p.. Immigration. Ross, E. A., The Old World in 
the New, gives a full treatment based on the report of the Immigra- 
tion Cormnission. Jenks and Lauck, The Immigration Problem 
(3d ed.), is a convenient compilation of much of the best material in 
the report. Commons, John R., Races and Immigrants in America, 
although written prior to the report of the commission, is still a very 
valuable book. Steiner, Edward A., On the Trail of the Immigrant, 
is a popular, dramatically written, and yet essentially accurate book. 
Haskin, Frederic J., The Immigrant, An Asset and a Liability, 
presents the facts gathered by the commission in a very interesting 
but sketchy way. His chapter on "Landing at Ellis Island " especially 
presents a vivid and concrete picture of the actual working of the 
immigration laws. Constant use should be made of the United States 
Census and of the annual report of the Commissioner-general of 
Immigration. 

Topics : 

The immigration and immigrants of the several races may be 
assigned to various students. The suggested methods of re- 
striction may also be debated with great profit. 




The New York water-supply system, from which Ihe Greater City obtains 
the 550,000,000 gallons consumed daily. The shaded portions around the 
various reservoirs indicate their drainage areas or watersheds. In its journey 
through the Catskill Aqueduct, the water is carried no miles, under moun- 
tains, across valleys, and beneath rivers. 



CHAPTER XXXIX 
MUNICIPAL FUNCTIONS 

The functions of the modern municipality are multi- Municipal 
farious in the extreme. It is charged in the first instance ^^i^ctions 
with the preservation of the peace and with the enforce- 
ment of the bulk of the penal or criminal statutes of the 
state (see Chapter XXXVIII). In this connection it acts 
as a unit of public health administration (see Chapter 
XXXII) . It is a local unit also, in the scheme of education, 
and it has important duties with regard to the care of de- 
pendents (Chapters XXXI and XXX). We have also 
discussed its part in the provision of recreation (Chapter 
XXrX) . We have seen something of the methods by which 
it regulates its public utiHty corporations and to what 
extent it has itself entered upon the ownership and oper- 
ation of such utilities (Chapter XXXV). There remain 
certain matters, mostly of the nature of public works, to 
be treated in this chapter. 

A pure and abundant water supply is the most funda- "Water 
mental of all civic necessities. Impure supplies spread ®^PP^y 
disease, and an insufficient supply causes inconvenience 
and even suffering.^ The best resource for a water supply 
is an uncontaminated lake or artificial reservoir. This 
has led cities like New York, Boston, and Los Angeles 
to go far for their water and to take enormous pains to 

1 The Romans realized this fact and built great aqueducts to bring the 
water of the distant mountain lakes to their imperial city. Even more 
striking as an example of civic engineering is the great Los Angeles aqueduct, 
which brings the city's water 2og miles from the Sierras. Still more imposing 
is the great Ashokan dam and reservoir, which can supply to New York, 
no miles away, 500,000,000 gallons of water a day. 

455 



456 THE FUNCTIONS OF GOVERNMENT 

keep sources of contamination from the watershed. 
Somewhat the same result is obtained by drawing the 
supply from wells or from very large lakes or streams. 
Chicago gets her water from Lake Michigan, and since 
the construction of a great intercepting sewer to prevent 
the pollution of the lake by sewage it is very tolerably 
pure. Many cities, especially in the more thickly popu- 
lated portions of the country, are so situated that a pure 
source of supply is impossible. In this event resort must 
be had to filtration.^ 
The city Of great importance to the convenience and prosperity 

P^*^ of a city is its plan. Many people have the very wrong 

idea that there is nothing more to city planning than 
city beautification. It is very much worth while to have 
a city beautiful, both because it adds to the pleasure of 
the people and because it makes the city more attractive 
to settlers and thus tends to increase its size and wealth.^ 
A good city plan, however, does much more than make a 
city beautiful. It provides for maximum utilization of 
its area, or, in other words, it makes it as convenient as 
possible for every citizen and every industry. 
The The cities of the colonial period grew up in a rambling 

checker- way, with narrow, crooked streets, except Philadelphia, 
for which Penn laid out a plan of rectangular blocks. At 
the very beginning of the nineteenth century New York 

^The filters most commonly used are great tanks partially filled with 
gravel, charcoal, etc., through which the water is forcod under pressure. 
In many places it is necessary because of the turbid nature of the water 
to use sulphate of alumina or the like to precipitate the solid matter held in 
suspension in the water before it is admitted to the filter. Where this is 
carefully done and the water is not forced through the filters too rapidly, 
good cleansmg results are obtamed. The other principal type of filter is 
a series of beds of sand laid on coarse gravel or coke, upon which the water 
is poured and through which it gradually percolates. These filters are very 
efficient in the removal of bacteria. They are not much used in this country, 
however, because of our turbid waters and cold winters. 

2 One has only to think of cities like Pasadena, Cat, to realize what an 
asset beauty may be to a city. 



MUNICIPAL FUNCTIONS 



457 



adopted a similar plan for its future growth. In this way 
the famiUar checkerboard pattern of street arrangement 



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I — II — II II II li 




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JCZICID 






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DDDnnnnnnp 

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street plan of Philadelphia, which WilUam Penn laid out in rectangular 
blocks. The chief merit of this arrangement is that one can easily find 
one's way about. 

became the fashion. Practically every city in the United 
States is cursed with it. Its chief merits are its sim- 
pUcity (no one can get lost in it) and that it requires a 
minimum of land for streets. It takes no account, how- 
ever, of the ''lay of the land," and gives, in many cities, 
streets with impossible grades. Seattle, for example, has 
been obhged at enormous expense to cut down its hills 
to prevent its plan from stunting the city's growth. A 
great deal of wit has been wasted on the crooked streets 
of Boston, which are popularly supposed to have been 
built upon the hues of ancient cow paths. As a matter 
of fact, the cows taking the line of least resistance, followed 
the contour of the hills. In this they were more rational 
than the modern San Franciscans, who laid down a rigid 
checkerboard pattern on nearly vertical hillsides. En- 



458 



THE FUNCTIONS OF GOVERNMENT 



The plan of 
Washington 



lightened city planners to-day advocate going around hills 
rather than over them. The checkerboard plan, further, pro- 
vides no main arteries of travel. To go anywhere, one must 
always go around two sides of a rectangle. It provides for 
great pubHc buildings no sites with adequate approaches. 
The city of Washington was the first and remains 
almost the only city in the United States to have had 





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naaaoB^^J^.S "S c:Il Cl::i 2 ^ 



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Street plan of Washington, D.C., showing what can be accomplished by a 
far-seeing city planner. Note especially the adequate approaches to the 
public buildings. 

prepared for it in advance a plan by a really competent 
city planner. It was laid out by Major L'Enfant, a 
capable French engineer officer, as shown in the accom- 
panying illustration. Its chief characteristic is a series 
of centers from which branch out great radial arteries. 
It is well calculated to show off to advantage the great 
government buildings and has had a great deal to do 
with making Washington the most beautiful city in the 
country. Other cities have now begun at great expense 



MUNICIPAL FUNCTIONS 



459 



to correct the defects of their checkerboard patterns by 
opening up great radial arteries.^ 

One of the greatest sins which can be laid at the door City plan 
of the checkerboard pattern as found in New York and ^^^ housing 
other cities is that of creating the typical tenement house. 
Every house lot is twenty-five feet across the front and 
one hundred and twenty-five deep. The effort to use as 
much of the lot as possible led to what are known as 
''packing-case" tenement houses; that is, a brick box, 
five or six stories high and covering the whole lot. Only 
the back and front rooms could have any direct access 
to light and air. The remaining rooms were dark, ill- 
ventilated, tuberculosis-breeding caves. Every large city 
now has some form of housing ordinance, and several of 
the states have statutes on the subject. This legislation 
is intended to require sufficient light and air for every 
room. Only a portion of the lot, from two thirds to three 
quarters, can be built upon ; living rooms below the sur- 
face of the ground are commonly prohibited; air shafts 
or wells must be left to light interior rooms. ^ 

Another way in which a good city plan can assist in City plan 
lessening the overcrowding of tenements is by the estab- 
lishment of a good system of transportation. This re- 
quires, of course, the arrangement of street railways, 
elevated railways, and subways in such a way as to accom- 
modate the greatest number of persons without congestion. 
In European cities street-car fares are adjusted on the 
basis of the distance traveled. For short distances they 

1 Where a city by accident or design has a radial street in the midst of 
its checkerboard, it always soon becomes its principal thoroughfare. Broad- 
way, in New York, is an example. 

2 These reforms have only mitigated the evil they were directed at. The 
plans of future cities should provide for shallow blocks in the working-class 
residence districts. If a block were only seventy -five feet deep, for example, 
there would surely be a much larger proportion of free air space than under 
the present system. 



and trans- 
portation 



46o THE FUNCTIONS OF GOVERNMENT 

are very much less than ours, but for long distances 
considerably more. This does not tend to distribute 
population as thoroughly as the fiat five-cent rate which 
prevails in this country. When we pass beyond the five- 
cent-fare limit, another principle comes into play ; namely, 
that it is only well-to-do people who can afford to go very 
far from their work. Swift and comfortable transporta- 
tion rather than a low rate is the motive which will induce 
them to leave the crowded city for the adjacent country. 
It is even more advantageous to move out of the city a 
well-to-do than a poor family, because the former occu- 
pies more space in it. Happily, in this country transpor- 
tation enterprise has made available great rural areas 
for residence and at rates so low that people of very 
moderate means can avail themselves of the privilege of 
life in the open.^ 
Model Something has been done, mostly by private enter- 

tenements prise, in building model tenement houses. The results 
have been rather disappointing so far as improving the 
living conditions of. the very poor is concerned. In 
general, people living in more expensive houses take ad- 
vantage of the good accommodations and low rents of 
the model houses. The best work along these lines has 
been done in Europe, in the development of so-called 
"garden cities" in connection with great industrial 
plants. There you have to deal with a very definite 
population which cannot be displaced by others. Some 
of the garden cities are extraordinarily beautiful, serving 
to show what could be done in the way of making the 
living conditions of the people happy, if men were wise 
and unselfish enough to do so. 

The usefulness of streets depends to a considerable 

1 One of the best examples of this can be found in the city of Los Angeles 
and the surrounding country. 




The great Owens River aqueduct, which supplies water to Los Angeles from 
a source more than two hundred miles distant. 




The Croton dam, which holds back the water supply of New York City. 



MUNICIPAL FUNCTIONS 461 

extent upon the character of their paving. Granite- Street 
block pavement, which, when laid upon a sound founda- P^^^s 
tion, is more durable than any other, is now coming to 
be limited to those streets on which a great deal of heavy- 
carting is done. With the extension of the use of the 
automobile truck, it is probable that it will entirely 
disappear. For ordinary business streets asphalt upon a 
concrete base is most frequently used. Its only competi- 
tors are wood-block and vitrified brick. The wood-block 
is slightly less noisy and slightly less slippery than asphalt, 
but somewhat more expensive. Vitrified brick is doubtless 
the most beautiful pavement for use in approaches to 
buildings or where a monumental effect of any kind is 
desired. It is, however, much less durable under heavy 
traffic. Residence streets, when paved at all, were until 
the advent of automobiles macadamized. That is, several 
inches of stone, coarser at the bottom than at the top, 
was laid upon the street and rolled into a compact mass. 
Automobiles, however, quickly pulverize and tear it to 
pieces, so that it is now being found necessary to use some 
kind of binding material to hold the surface together. 
The usual material employed is crude petroleum or some 
form of asphaltic oil. 

To keep the streets clean and free from dust is a matter street 
of first importance to the comfort and health of the and^p^ra^ning 
community. The duty of caring for the surface of the 
streets originally belonged to the abutting property 
owners, and in certain cities they are still assessed 
for street watering. Street cleaning and watering are, 
however, now carried on as one of the functions of the 
municipality. The task of cleaning the streets is the duty 
of the street department, which does the work directly 
through its own employees. Strict ordinances are to be 
found in most cities against the throwing of refuse into 



462 THE FUNCTIONS OF GOVERNMENT 

the street. Street watering is sometimes done by contract, 
and sometimes by the street department directly. The 
watering and cleaning of the streets in residence dis- 
tricts is usually rather inefficient, due largely to false 
motives of economy.^ 

Street Two great motives require the lighting of our streets: 

^ ^^ public convenience and safety. It has been found by 

experience that good lighting reduces very much the 
number of violent crimes. Most criminals are cautious 
or ashamed enough to prefer to work in the dark. With 
the development of the use of electricity for signs and 
general advertising purposes, the business portions of 
our cities are generally pretty well lighted, except, un- 
fortunately, the wholesale districts and the regions ad- 
jacent to railroads and wharves. Residence sections are 
generally poorly lighted, the occasional lights only serving 
to deepen the shadows in the spaces between.^ 

Sewers Down to nearly the middle of the nineteenth century 

very little had been done by American cities toward pro- 
viding for the disposition of the wastes of the community. 
As long as people lived in sufficiently scattered dwellings, 
the cesspool could be relied upon as a means of disposi- 
tion of the family waste. When cities, however, came to 

1 In a large portion of the country the question of the removal of snow 
becomes very important in the winter season. The poets who sing of "beau- 
tiful snow " have no reference to the dirty, slushy masses that block trafl&c on 
the city streets. It is usual to provide for the removal of snow by contract, 
as it would be out of the question for the city to maintain throughout the 
year a force of men and teams sufficient to clear away a heavy fall of snow 
in a few hours. 

^ Public street lamps have passed through the various stages of oil, gas, 
gas-mantle, and the different forms of electric light. For a long time high- 
hanging arc lights were most favored. Such lights make a good illumina- 
tion, but they are expensive and add nothing to the beauty of the city. 
The development of the tungsten and other metal-filament incandescent 
lights has made it a matter of economy to use numerous lights of this type 
arranged on ornamented posts, instead of a smaller number of arcs. The 
beauty of the street is greatly enhanced by this means. 



MUNICIPAL FUNCTIONS 463 

be thickly built up and great factories produced a large 
amount of this waste, the problem was a very different 
one. The development of good sewer systems was greatly 
assisted by the erroneous filth theory of the source of 
disease. Under the impetus of this idea, great sewers 
were built, and laws were passed requiring every house 
or business establishment to be connected with them. 

Where a lake, river, or bay has been at hand, it has Sewage 
been the custom to allow the sewage to enter into it. ^^^°® 
This has sometimes resulted in grave nuisances. If, how- 
ever, the stream or lake is large enough, and if proper 
precautions are taken to see that the filth is not swept 
back upon the shore, this method of disposition is not 
detrimental to health. Where there is not a sufficiently 
large lake or stream, and the ocean cannot be conveniently 
reached, it is necessary to provide some means of purifi- 
cation. One commonly used method is the septic tank, 
which is simply a sort of glorified cesspool. The sewage 
is emptied into a large receptacle, and left there a suffi- 
ciently long time to permit organic matter to disintegrate 
and the inorganic matter to settle to the bottom. This 
makes it somewhat safer to let the sewage flow into 
streams, but by no means purifies it. Another method is 
that of filtration. There are many types of filters. The 
most efficient of these is the slow sand filter, similar to 
that described as used for the purification of water sup- 
plies. If the sewage is allowed to pass through a septic 
tank first, to remove the solid matter, and the filter beds 
are kept properly clean, sewage may be purified to such 
an extent as to make it absolutely safe to empty it into 
any body of water. Still another method is that of the 
sewage farm, the sewage being used for irrigation. Where 
the soil is capable of absorbing large quantities of water, 
and where the climate is sufficiently dry, this method is 



464 



THE FUNCTIONS OF GOVERNMENT 



Garbage 
and refuse 



Fire 
protection 



highly successful. The farm may be made at least partly 
to pay for itself. This method cannot, however, be put 
into general use, because it requires a great deal of land 
and because in a damp climate sewage is not taken up by 
the soil. 

The collection of garbage and other household refuse 
is sometimes left to private scavengers, who charge a fee 
for their services. In most cities, however, it is very 
properly a matter for direct municipal action. It is 
administered by the same department which cares for 
cleaning the streets. As in the case of sewage, the most 
difficult problem is that of disposition. Something can 
be gained by picking over dry refuse. There is always a 
considerable amount of coal in ashes, and American 
families are peculiarly improvident in throwing away 
articles which might be made use of. Efforts have also 
been made to utilize garbage. A little of it can be sold 
for fertilizer. It is sometimes sold to farmers who feed 
it to hogs, but this practice is generally condemned by 
health authorities. Some cities have reduction plants, at 
which soap and other articles are made from garbage. 
These ventures, however, have not generally proved 
successful. Cities on the seacoast frequently dispose of 
their refuse by dumping it at sea. This is not a bad 
method, provided they dump it far enough out. For 
inland cities the most satisfactory method is incineration ; 
that is, burning at a sufficient temperature to reduce the 
whole mass to clinker. The incinerator furnaces may be 
used to heat boilers and in this way produce power for 
municipal purposes, thus diminishing the cost of the work. 

The annual loss from fires in American cities is far 
greater than in those of Europe. This is largely to be 
accounted for by the greater carelessness of Americans. 
It should be impressed on every mind that it is of the 



MUNICIPAL FUNCTIONS 465 

greatest importance to prevent these losses. A building 
destroyed by fire means a loss to the whole community. 
Where a building is insured, the loss is merely distributed 
over a great body of persons who are paying fire insur- 
ance premiums. In every city there will be found build- 
ing ordinances of varying degrees of strictness. These 
ordinances generally establish limits within which wooden 
buildings are not allowed. They prescribe the method of 
construction of chimneys, boilers, etc., and establish 
rules for electric wiring, defects in the last being one of 
the chief causes of fires. The fire department itself 
should be regarded only as a last resort. The first pre- 
requisite of a successful fire-fighting system is a good 
water supply. It was the breaking of the mains and the 
consequent inability to get water which made the San 
Francisco fire department helpless against the confla- 
gration which followed the earthquake of 1906.^ Fire 
hydrants should be located at convenient intervals. 
Several of our cities have created artificial high-pressure 
systems for use in the region of skyscrapers. Streams 
can now be thrown with tremendous force over the very 
tops of these buildings, thus reaching fires against which 
the old fire engine would be helpless. In former days 
great dependence was placed upon the fire-alarm system, 
but the general use of the telephone has now made it of 
relatively httle importance. The fire department is 
organized much like the pohce department. There is 
usually a civihan board of fire commissioners, or a single 
fire commissioner. In commission-governed cities there 
is frequently a commissioner of public safety, who is in 
general charge of both police and fire departments. The 
actual working head of the department is the chief, while 

^That city has now established reserve reservoirs for fire purposes in 
strategic locations throughout the city. 



466 THE FUNCTIONS OF GOVERNMENT 

each fire house is in charge of an officer, usually a captain. 
In most cities of any size the firemen live at the fire houses, 
and are on duty twenty-four hours during the day. 
Each man, however, is entitled to certain hours off in 
the course of the week. In small places it is not unusual 
for at least part of the firemen, who are known as "call 
men," to come from their homes or places of business on 
hearing the alarm. 

SUGGESTIONS FOR FURTHER STUDY 

Beard, pp. 603-637, and Readings, pp. 535-555, in a measure 
parallel this chapter. Two books deal with the general field of the 
chapter: Munro, W. B., The Principles and. Methods of Municipal 
Administration, and Zueblin, C, American Municipal Progress 
(Revised Edition). The first is the more scholarly, the latter the 
easier reading for high school students. "The American City" and 
"The Survey," monthly magazines published in New York City, 
are currently full of material on the subject. Below are given certain 
specific references on the various topics touched upon. 

Water Supply: Beard, C. A., American City Government, pp. 
266-269. 

City Plan : Beard, C. A., American City Government, pp. 356-386 ; 
Howe, F. C, The Modern City and Its Problems, chs. xv and xvi; 
European Cities at Work, ch. v, are useful brief references. Moody, 
W. D., Wacker^s Manual of the Plan of Chicago, will be very useful 
with young pupils. It would be well if each school could have in 
its library one of the large illustrated books on the subject, such 
as KoESTER, Frank, Modern City Planning and Maintenance, and 
Robinson, C. M., Modern Civic Art. The best smaller book is 
NoLEN, John, Replanning Small Cities. See also Proceedings of 
Annual City-Planning Conferences. An excellent bibliography will 
be found in Berkeley Civic Bulletin, vol. ii, No. 8, City Club, 
Berkeley, Cal. 

Housing: Beard, C. A., American City Government, pp. 287-310; 
Howe, F. C, The Modern City and Its Problems, chs. xix and xx; 
European Cities at Work, ch. ix. Veiller, Lawrence, Housing 
Reform, is the best book on this subject. 

Street Paving, Cleaning, Watering, and Lighting : Beard, C. A., 
American City Government, pp. 242-260; Baker, M. N., Municipal 



MUNICIPAL FUNCTIONS 467 

Engineering, pp. 11-24, 151-156; New York City Report of the 
Mayor's Committee on Pavements (191 2), 

Sewers and Sewage Disposal: Beard, C. A., American City 
Government, pp. 269-271 ; Baker, M. N., Municipal Engineering, pp. 
125-150. 

Garbage and Garbage Disposal : Baker, M. N., Municipal Engi- 
neering, pp. 157-166. 

Fire Protection: Beard, C. A,, American City Government, pp. 
282-286; Baker, M. N., Municipal Engineering, pp. 175-181. 

Topics : 

Each of the functions of city government as exhibited in your 
own and neighboring cities may be made the subject of a stu- 
dent's report. 



CHAPTER XL 



REVENUE AND TAXATION 



Sources of 
revenue 



Benefit and 

ability 

theories 



OiiR governments derive their revenues from three 
main sources, "taxes," "fees," and "prices." A tax is a 
general compulsory contribution of wealth to be used for 
the benefit of all the people, as for the support of police, 
education, the army, etc. A fee is a compulsory contri- 
bution intended to meet some or all of the expense of a 
government service, which is partly for the benefit of the 
public and partly for that of the person from whom it is 
collected. A familiar example is to be found in those pay- 
ments required in connection with various steps in the 
administration of justice. A price is the charge made by 
the government for a commodity or service sold by it. 
Besides these main sources of revenue, governments 
derive income from gifts, fines, etc., but they are of rela- 
tively small account. 

Fees and prices give the student of pubHc finance httle 
trouble. The one manifestly must be proportioned to the 
expense of the service rendered, while the other is largely 
determined by the same forces which determine the rate at 
which private individuals would sell the same service. 
The rules, however, which should be followed in fixing 
the rates or determining the form of taxation are by no 
means so easily discovered. The justification of a tax is 
of course the benefit which it confers on the pubhc. It 
was at first assumed that the amount of taxation each 
person should pay should be in proportion to the benefit 
conferred upon him. As a matter of fact it is often im- 
possible to show that one man benefits more largely from 

468 



REVENUE AND TAXATION 469 

the activities of government than another. This led to 
the abandonment of this theory in favor of the so-called 
''abiHty " theory, which would measure taxation in accord- 
ance with the ability of each citizen to contribute. It is 
now generally agreed that ''abihty" increases more 
rapidly than wealth. In other words, a man with a large 
income is able to pay a larger proportion of it in taxes 
than a man with a small income. 

Customs duties, which we popularly call the "tariff," Tariflf 
are one of the most important sources of revenue of the 
national government.^ Even more important than its 
results as a revenue producer are the effects of the tariff 
on trade and industry. We have had in the United States 
since 1816 a "protective" tariff. The purpose of a pro- 
tective tariff is to lay such duties as will prevent wholly 
or in part the importation of an article of commerce and 
thereby encourage or protect its manufacture at home. 
That a tariff may accomplish this result the history of the 
United States abundantly proves. The opponents of 
the protective tariff advocate a tariff "for revenue only," 
or "free trade." Such a tariff is, strictly speaking, im- 
possible, even the least duties having an effect on trade. 
A protective duty, on the other hand, may prevent im- 
portation and consequently cut off revenue. As a practi- 
cal matter, since 18 16 no tariff has been laid in this coun- 
try in which both elements, protection and revenue, were 
not considered. 

1 For the year ending June 30, 1914, the income of the United States 
from various sources was as follows : 

Customs duties $292,000,000 

Internal revenue taxes 309,000,000 

Corporation excise taxes 11,000,000 

Income tax 60,000,000 

Miscellaneous 62,000,000 

Total $734,000,000 



470 



THE FUNCTIONS OF GOVERNMENT 



The argu- 
ment for 
free trade 



Arguments 
for protec- 
tion 



The argument against protection is based on the theory 
of international trade. Economists hold that, in the 
absence of any interference, each nation will produce and 
sell to other nations those articles which it can produce 
with the greatest relative advantage. The result will be 
the greatest economy in production, since every com- 
modity will be produced where it can be produced most 
cheaply. The erection of a tariff barrier which forces 
people to buy at home for a greater price what they might 
buy abroad for less, is to the mind of the ''free-trader" 
the merest folly. The tariff, they say, is a tax on all 
consumers for the benefit of those who produce protected 
articles. It must be admitted that there is great force in 
this contention. Most of the great theoretical econo- 
mists have been free-traders. The practice, however, of 
the principal countries of the world except Great Britain 
has been in direct defiance of their theories. 

The best of the protectionist arguments are two in 
number, (i) The Infant Industry Argument. If, by pro- 
tecting an industry in its infancy, it may ultimately 
become estabUshed, the increase in the productive ac- 
tivity of the country may well be worth the price of pro- 
tection. A well-rounded industrial life tends to prevent 
those periods of depression which are most marked in 
countries whose prosperity depends on a few staple prod- 
ucts. National independence is likewise more secure. 
(2) The Standard-of -Living Argument. It is frequently 
and with much justice contended that such a degree of 
protection as will make up the difference in cost of pro- 
duction here and abroad caused by our higher rates of 
wages is defensible as a means of maintaining the standard 
of living of American labor. It is to be remembered, too, 
that where industries have grown up under a system of 
protection, to withdraw or suddenly reduce that protec- 



REVENUE AND TAXATION 471 

tion will cause great disturbances, including the throwing 
of workers out of employment, until time has given op- 
portunity for readjustment. 

The great difficulty with the system of protection has Unscientific 
been the impossibility of getting from Congress any fair <^^""*ci:®r of 
and scientific adjustment of duties. The desire of the 
protected for more protection is apparently insatiable. 
The political pressure which big and little interests exert 
on their own behalf has proved irresistible. Duties have 
been arranged to satisfy these demands, with little regard 
for the interests of the country at large. ''Infant indus- 
tries" have shown no disposition to try to walk alone even 
after half a century of tariff assistance, and as a result 
some of them have grown to giant monopolies. The 
tariff, indeed, has, by excluding foreign competition, been 
one of the most powerful bulwarks of the so-called '' trusts." 
The desire of big business for protection has led to much 
corruption in American politics. These facts have induced 
many people not theoretically opposed to protection to 
become advocates of a low tariff. 

Tariff duties are of two kinds, ad valorem and specific. Tariff duties 
An ad valorem duty is a certain proportion of the value ij^t d 
of the goods imported. A specific duty is a given sum states 
per yard or per pound. It is obvious that a specific duty 
bears more heavily on the lower and cheaper grades of a 
given product than on the better and more expensive. 
Frequently both kinds of duties are applied in combina- 
tion. The general tendency has been toward an increase 
in duties, which began at a very moderate level and 
reached their climax in the so-called Dingley Tariff of 
1897. The Payne- Aldrich Tariff of 1909 was a half- 
hearted attempt by the Republican party to redeem the 
pledge of tariff reduction made in its platform of 1908. 
The tariff of 19 13 passed by a Democratic Congress shows 



472 



THE FUNCTIONS OF GOVERNMENT 



Internal 
revenue 
taxes 



The income 
tax and the 
Constitution 



an appreciable reduction of duties, but is far from the 
free-trade standard. 

Excises or, as we generally speak of them in the United 
States, internal revenue taxes are "those taxes levied 
within a country on commodities destined for consump- 
tion." ^ They are collected from the producer, who of 
course includes the tax in the price of the article. It is 
recognized that only a severe national crisis can justify 
their use in such a way as to increase the cost of the 
necessaries of life. Usually, therefore, these taxes are 
laid upon luxuries. There are United States taxes on 
brewers, distillers, retail liquor dealers, etc. The payment 
of these taxes is represented by a "stamp" or receipt 
hung up in their place of business. There are also taxes 
on certain liquors, cigars, cigarettes, playing cards, etc., 
payment of which is represented by a stamp pasted on the 
box or container. The receipts of the United States from 
internal revenue taxes amounted in 1913 to $34,416,966. 
In time of war or financial difficulty, as in 19 14, the rates 
may be increased and articles added to the taxable list.^ 
Applied to luxuries, the excise is a convenient and justi- 
fiable means of raising revenue. Liquor and tobacco 
especially will bear very high taxation without any ma- 
terial reduction in their consumption. 

The third most important source of the revenue of the 
United States is now the income tax. A tax on incomes 
is in the opinion of the leading writers on taxation the 
fairest of all taxes. The chief objection to it has arisen 
from the necessity of inquiring a good deal into the private 
affairs of individuals in order to determine what their 
incomes are. The history of the income tax in the United 



^ Plehn, C. C, Introduction to Public Finance, p. 169. 
2 The law of 1914 included taxes on telephone and telegraph messages, 
express packages, and certain financial transactions. 



REVENUE AND TAXATION 473 

States is very interesting to the student of government. 
Article I, Section 9, of the Constitution provides that 
''no capitation or other direct tax shall be laid, unless in 
proportion to the census or enumeration hereinbefore 
directed to be taken." The first income tax passed by- 
Congress in 1862 called for a tax of three per cent on all 
incomes of from $600 to $10,000 and five per cent on all 
others. It was obviously unapportionable among the 
several states. If it were a direct tax, it was, therefore, 
unconstitutional. The Supreme Court, however, in the 
case of Springer vs. the United States (102 U. S. 586), held 
that it was not a direct tax, and with certain changes in 
the rates this law remained in force until 1870. In 1894, 
to make up expected deficiencies in revenue owing to a 
reduction of tariff duties. Congress again passed an income 
tax law. The following year the Supreme Court turned 
its back on its former decision and declared it a direct 
tax.^ In 1909 Congress submitted to the states the Six- 
teenth Amendment, which received its thirty-sixth rati- 
fication in February, 19 13. As a part of the tariff revision The present 
of 1913, a very complete and thoroughgoing income tax ^^<^®™® *" 
was adopted.^ 

1 Pollock vs. Farmers' Loan and Trust Co., 157 U. S. 429; 158 U. S. 601. 

2 It applied to all citizens of the United States, and to residents of foreign 
countries deriving income from the United States. The normal rate is one 
per cent. This rate is laid on the net income of all domestic corporations 
and on that part of the income of foreign corporations which is derived from 
this country. It is laid, also, upon the incomes of individuals above $3000 
($4000 in the case of the joint income of a husband and wife living together). 
Additional taxation is put upon incomes exceeding $20,000, as follows : 

1% on amoxmt by which income exceeds % 20,000 



2% " ' 






50,000 


3% " ' 






75,000 


4% " ' 






100,000 


5% " ' 






250,000 


6% " ' 






500,000 



In other words, in the case of an income of one million dollars the tax 
would be nothing on the first $3000, one per cent on the next $17,000, two 



474 I^HE FUNCTIONS OF GOVERNMENT 

General The basis of state and local taxation in the United States 

property tax -^ ^-^q general property tax. The theory of this tax is that 
every species of property should contribute to the support 
of government in proportion to its value. Among the 
objects included within its range are land, buildings, 
various forms of capital such as the stock of banks and 
corporations, money, and other personal property. The 
total amount of property having been determined by 
assessment, a rate of taxation sufficient to meet the ex- 
pected cost of government is levied on the property in 
the hands of each individual and corporation. Assess- 
ments for state and county purposes are made by an 
elected county official, except in New England, where 
the assessor is elected by the town. Cities sometimes 
make use of the county assessment, but frequently 
separately assess all property for their own purposes. In 
the latter event an assessor is elected by the people or 
appointed by the mayor or council. Personal property 
from its nature has to be assessed each year. Real prop- 
erty assessments are usually made every year for local 
purposes, but sometimes only every five or ten years for 
state purposes. The task of assessing property is one 
that calls for great honesty, independence, and not a 
little technical skill. It is a regrettable fact that our 
assessors all too often fail in one or the other of these 
particulars. After the assessment has been made, the city 
council ^ or county board sits as a ''board of equalization." 

per cent on the next $30,000, three per cent on the next twenty -five, etc., 
up to seven per cent on the last $500,000. The income of an individual, 
so far as it is derived from a corporation which has been taxed, is exempt. 
Deductions are made for wear and tear on property, taxes, losses by fire 
uncompensated by insurance, etc. As far as possible the normal rate is 
collected at the source of the income, the law requiring employers, trustees, 
agents, etc., to withhold one per cent of any fixed or determinable annual 
income in excess of $3000. 

1 Sometimes, as in New York City, other provision is made for equalization. 



REVENUE AND TAXATION 475 

In this capacity it hears the complaints of taxpayers and 
corrects and equaUzes the work of the assessor. Where 
the local assessment is made the basis of state taxation, 
it is very plainly to the advantage of the locaUty to be 
assessed at as low a valuation as possible. County 
assessors may vie with one another in reducing assess- 
ments, until the state is embarrassed and the county or 
city government, which generally can borrow or spend 
only a fixed proportion of its assessed valuation, is crippled. 
This has led to the institution of state boards of equahza- 
tion, which are sometimes composed of state officials ex 
ofl&cio and are sometimes elected by the people. These 
boards raise or lower the general level of local assessments, 
but do not touch the assessments of particular parcels of 
property. 

The general property tax, standing alone as it practi- Criticism of 
cally does in most of our states, has come in for the sever- p^op^erty^tax 
est condemnation of writers on taxation. The possession 
pf property is by no means a certain proof of ability to 
pay. Witness that common expression of an everyday 
condition, "land poor." Even more serious are the in- 
equalities resulting from the system of assessment. The 
ignorance and lack of independence of assessors result in 
all sorts of inequalities, even in the valuation of real 
estate and buildings which are quite impossible of con- 
cealment. With regard to personal property the system 
breaks down entirely. The temptation to deceit and . 
evasion is too great for human nature to resist. In general 
it is the well-to-do who escape and those of moderate 
means who pay on their personal property. The effect 
of the tax is to make a great many Hars and hypocrites 
for a comparatively small revenue return.^ 

1 The discrepancy between the assessments of real and personal property 
is clearly shown in the following tables: 



476 



THE FUNCTIONS OF GOVERNMENT 



Inheritance 
tax 



Many of the states make use of an inheritance tax. 
This tax brings into the coffers of the state a proportion 
of all considerable estates descending by inheritance. 
The proportion frequently increases with the size of the 
estate and with the distant relationship of the heirs. In 
most states small estates and those passing to the husband, 
wife, or children of the deceased are exempt from taxa- 
tion. There can be no doubt of the justice and efficiency 



Estimated True and Assessed Valuation of Real and Personal 
Property in the United States, 191 2 

(Special Report of the United States Census Ofl&ce on Wealth, Debt, and 

Taxation, 1907) 



All property 

Real property and improvements . 
Personal and other property (in- 
cluding railroads, etc.) .... 



TRUE VALUE 



5187,739,071,090 * 
110,676,333,071 

77,062,638,019 



ASSESSED VALUE 



569,452,936,104 
51,854,009,436 

17,598,926,668 



*0f this amount $12,313,519,502 was estimated to be exempt from 
taxation. 



Assessed Valuation of Real and Personal Property in the Five 
Largest Cities of the United States 

(United States Census Bureau, Financial Statistics of Cities, 191 1) 



New York . 
Chicago 
Philadelphia 
St. Louis 
Boston . . 



real property personal property 



57,858,840,164 
663,376,027 

1,545,588,549 
423,554,460 

1,146,764,000 



1357,923,123 

223,578,274 

2,014,744 

101,319,770 

274,832,799 



It is impossible to imagine that there is only $357,000,000 worth of 
personal property in New York, or that there is only $80,000,000 more such 
property in New York than in Boston. Chicago property is ostensibly 
assessed at twenty-five per cent of its value. New York and Boston property 
at one hundred per cent. On that basis there would be really three times 
as much personal property in Chicago as in New York, which is absurd. 



REVENUE AND TAXATION 477 

of this tax. The administration of the estate of a deceased 
person brings its value to light, so that there is no oppor- 
tunity for evasion. It occasions little complaint, because 
persons who receive by inheritance a property which was 
amassed without exertion on their part are glad to get it, 
however much reduced by taxation. This is truest of 
large estates going to distant relatives. Hence the wisdom 
of making the tax progressive both by size of the estate 
and the degree of relationship of the heirs. Many radical 
reformers would make the inheritance tax so large as to pre- 
vent the- transmission of colossal fortunes by inheritance. 

The simplest and one of the oldest forms of taxation The poll tax 
is the poll tax, a uniform contribution required of each 
adult male citizen without regard to wealth. Of course 
such a tax must be small, or it would become an intoler- 
able burden on the poor. The usual amount is two 
dollars. It is very generally evaded except by those who 
have property taxes to pay. In their case it is made a 
lien on their property and collected with the rest of the 
taxes. The poll tax generally goes to the support of the 
state government, but in some instances a tax upon 
polls is used for local purposes, especially roads. . The 
road tax may usually be paid in money or be ''worked 
out" by the labor of the taxpayer. 

States and localities derive considerable revenue from Business 

taxes on the conduct of certain businesses. These taxes \f^^^ *^^ 

licenses 

are, of course, closely analogous to the internal revenue 
taxes of the United States government. The chief dif- 
ference is that the motive of their enactment is very often 
to regulate or restrict a business, in the interest of 
the public welfare. Hence they are frequently called 
" licenses." The most important are the taxes on the sale 
of intoxicating liquors. Where the sale of liquors is not 
entirely prohibited, the policy of "high license" generally 



478 THE FUNCTIONS OF GOVERNMENT 

prevails. This tax is highly productive. In New York, 
where the tax is divided, one third going to the state and 
two thirds to the city, the city's share in 1910 was $5,864,- 
744. Even then the limits of the tax-paying power of the 
saloon have not been nearly reached. It is argued in 
favor of this tax that it is only fair that a business which 
adds so materially to crime, pauperism, and insanity 
should be taxed to pay for the salvage of its own wrecks. 
On the other hand, most opponents of the saloon object 
to its becoming a large source of revenue because of the 
disinclination of the public to lose income by prohibiting 
the sale of liquor altogether. Another class of licenses 
is imposed rather for the purpose of securing the regis- 
tration of those engaged in the business than for revenue.' 
Fees and A good deal of money is received by our national, 

sessments state, and local governments by way of fees for services. 
A corporation pays a fee for its articles of incorporation, 
an automobilist for his car number.^ Wherever papers are 
filed or recorded, a fee is usually required. Every step 
in getting a case through the courts is dogged with fees. 
One form of fee deserves particular attention — the 
special assessment. Where public improvements, such as 
paving, sewers, street lights, etc., are made, it is cus- 
tomary to assess the neighboring property owners as 
nearly as may be in proportion to the benefit conferred. 
The theory of these special assessments is that the value 
of the property is enhanced by the improvement and may 

^ State Revenue Receipts, 1913 
(U. S. Census Report on Wealth, Debt, and Taxation) 

General property taxes $i39)75o.303 

Special property taxes 67,675,933 

Poll and occupation taxes 2,965,069 

Business and income taxes 53,642,322 

Liquor licenses 20,992,857 

2 This may be made an important source of income. 



REVENUE AND TAXATION 



479 



therefore be justly held to pay for it. A city is thus 
enabled to carry out great schemes of betterment which 
could not be paid for by general taxation. Instead of 
assessing the neighboring property owners to pay for a 
great improvement, the city may, if the state constitu- 
tion and laws permit, acquire the abutting property by 
condemnation.^ Then, after the work is done, it may sell 
for increased prices. It is by this means that the remark- 
able remodeling of many European cities has been accom- 
phshed. Unhappily it is only in a few of our states that 
a city may take more land than is needed for the ''pubHc 
use" in the narrowest sense of that term. 

Next to the general property tax, the revenue from Revenue 
pubHc utihties is the largest single source of income of ^^^J}-^"^^*^ 
American cities. The most significant point in this con- 
nection is that the conduct by municipalities of income- 
producing utihties is rapidly increasing.^ 

iThis is known as "excess condemnation." 

2 Revenue Receipts of Cities of over 30,000 
(Plehn, Carl C, Government Finance in the United States) 



Total 

General property taxes 

Special property taxes 

Poll and occupation taxes 

Business taxes 

Non-business license taxes .... 

Special assessments 

Fines, forfeitures, and escheats , . , 

Subventions and grants 

Donations, gifts, and pension assessments 
Earnings of general departments . , 

Highway privileges 

Rents of investment properties . . . 

Interest 

Earnings of waterworks 

Other earnings 





PER CENT 


66,000,000 


100 


26,000,000 


60.7 


12,500,000 


1.4 


1,500,000 


0.2 


53,000,000 


6.1 


4,000,000 


0.5 


72,500,000 


8.4 


4,500,000 


0.6 


34,500,000 


4.0 


4,000,000 


0.5 


21,000,000 


2.4 


12,500,000 


1.4 


g, 000, 000 


I.O 


24,500,000 


2.8 


71,000,000 


8.2 


15,500,000 


1.8 



48o 



THE FUNCTIONS OF GOVERNMENT 



Separation 
of state 
and local 
taxation 



The single 
tax 



In most states both state and local governments derive 
their support almost altogether from the general property 
tax. In some — for example, New York and California — 
the objects of taxation have been divided between the 
state and the locality. The state, under this system, 
derives its revenue from taxes on corporations, including 
railroads and other pubHc service companies, insurance 
companies, and banks. ^ The general property tax is thus 
left to the cities and counties. The chief advantages of 
this system are that it supports the state on a class of 
property which largely escaped local assessment under 
the general property tax, and that it does away with the 
temptation to under-assessment by local assessors. 

Many people believe, with Henry George, that land 
should bear the whole burden of taxation. That a '' forty- 
niner" who purchased a worthless block of land in San 
Francisco and held it without improvement for half a 
century, should through the growth of the city come to be 
worth millions appears to them monstrous. They call 
that part of the value of land which it derives from any 
other source than the labor of man upon that land the 
''unearned increment." This, they say, it is the right and 
duty of the state to confiscate by taxation. It will im- 
mediately occur to your mind that while the "increment" 
is unearned in the hands of the "forty-niner," it may be 
bought by the product of the labor of another. Sud- 
denly to apply the "single tax" would be to do incalculable 
injury to a vast number of people. Further, it is actually 
certain that the revenue produced would be inadequate. 2 



^ In California, railroads, street railways, car, pipe-line, power, and 
express companies pay a fixed portion of their gross earnings to the state. 
In return their operative property is exempted from local taxation. Banks 
pay on their capital, surplus, and profits. Insurance companies pay on 
their gross premiums, and other corporations on their franchises. 

2 Plehn, Introduction to Public Finance, p. io8. 



REVENUE AND TAXATION 481 

With the idea that a tax on land encourages while a tax 
on improvements and on personal property discourages 
progress, we can have only sympathy. For the purpose 
of local taxation the personal property tax should be aban- 
doned and the taxes on improvements gradually reduced. 

SUGGESTIONS FOR FURTHER STUDY 

The best general work for the elementary student is Plehn, C. C, 
Introduction to Public Finance (3d ed., 1909). An excellent brief 
and up-to-date consideration is to be found in the same author's 
Government Finance in the United States, pp. 1 16-155. See also 
Taussig, F. W., Principles of Economics (vol. ii), pp. 483-561. 
The Encyclopedia of American Government (Appleton) deals very fully 
with this subject under the titles " Tax," " Taxation," etc. See also 
Beard, pp. 359-365, 714-718, and Readings, pp. 323-338, 59^^605. 
On municipal taxation see Munro, W. B., Principles and Methods 
of Municipal Administration, ch. x. Copies of the tax laws of most 
states are available in separate printed form and may be obtained 
on application to the proper authorities. On city taxation, the 
Census Bureau Report on "Financial Statistics of Cities" will be 
found helpful. On the subject of the tariff it would be well to have 
a copy of the Underwood Act of 19 13. Good use can be made of the 
Congressional Record for the period of the tariff debate. Taussig, 
F. W., Tarif History of the United States (1914 edition), is the best 
authority on the development of tariff legislation in the United States. 
Tarbell, Ida M., The Tariff in Our Times, deals very interestingly 
with the tariff in its political aspects. See also Encyclopedia of 
American Government, especially article on "Tariff Administration." 

For teachers : Bastable, C. F., Public Finance, and Seligman, 
E. R. A., Essays on Taxation, Progressive Taxation in Theory and 
Practice, and Income Tax, will be found of great value. A very 
thorough account of the tax system of each state is given in the 
volume on Wealth, Debt, and Taxation published by the Census 
Bureau in 1913. On the single tax, of course the classic favorable 
statement is to be found in George, Henry, Progress and Poverty. 
It is discussed much more briefly in Fillebrown, C. B., The ABC 
of Taxation. The opposition view is very forcibly stated by Plehn 
and Seligman. There has been a great deal of periodical literature 
on this subject. 



482 THE FUNCTIONS OF GOVERNMENT 

Topics : 

The Tax System of Your State. 
The Tax System of Your City. 
Methods of Assessment. 
Each of the More Important Tariffs. 
The Income Tax — Is It a Direct Tax ? 
Income Tax Law of 191 3. 
War Revenue Measure of 1914. 
Single Tax. 



CHAPTER XLI 
GOVERNMENT FINANCE 

Down to 1865 practically all appropriations of the Appropria- 

national government were considered in the Committee *i°^^ ^y 

Congress 
on Ways and Means, the committee in which also originate 

all revenue bills. In that year a standing Committee on 
Appropriations was provided for, and as time has gone 
on more and more committees have come to have a finger 
in the appropriation pie. Several of the largest items of 
government expenditure are now authorized in separate 
bills; for example, the agricultural bill, the army bill, 
the naval bill, the river and harbor bill, each of which 
originates in a distinct committee. Indeed, any commit- 
tee may report a bill carrying an appropriation. The 
basis for the action of all the committees which deal with 
appropriations is the "book of estimates." This is pre- 
pared each year by the Secretary of the Treasury and 
contains the estimates of the several departments as to 
their needs for the coming year. The departments natu- 
rally ask for more than they expect to get, indeed for more 
than on a fair basis of apportionment they ought to have. 
Neither the Secretary of the Treasury nor any other 
officer makes any attempt to revise these estimates or to 
adjust them to the needs of the government as a whole. 

Although many of the committees labor hard upon Pressure on 

this mass of undigested material, there is not time in the <^o"^^^t*ees 
° ' reporting 

midst of the rush of one brief session to find out just appropria- 
what they should do with each of the myriad items placed *^°^^ 
before them. Further, the appropriating committees are 
subjected to great pressure by each bureau and depart- 

483. 



484 THE FUNCTIONS OF GOVERNMENT 

ment to make the particular appropriation in which it is 
interested as large as possible. Then, there is the pressure 
from locahties which will be benefited by proposed ex- 
penditures. It only too often happens that members of 
Congress who are each anxious to secure public works for 
their districts will unite to support one another's post 
offices, docks, or naval stations, irrespective of the merits 
of the projects. This is called "log-rolling." The chair- 
man of the Committee on Appropriations is supposed to 
watch the work of the other spending committees, but 
such coordinating influence as he exercises is spasmodic 
and ineffective. The committees incHne to be jealous of 
one another and each is disposed to try to drive its bill 
through, irrespective of every other. There is no practical 
way of forcing an extravagant committee to curtail its 
grants. It is very natural, therefore, that the committee- 
men say in effect, "What is the use of our making our- 
selves unpopular with our fellow-members and our con- 
stituents by practicing an economy which will only 
enable some other committee to be extravagant?" 
Appropria- Appropriation bills, on coming from the committees 

tion bills m -^^ ^^ House, are placed on the Union Calendar and are 
and House rather perfunctorily debated. Having passed the House, 
they go to the Appropriations Committee of the Senate, 
where they pass through the same kind of efforts to en- 
large them which they experienced in the House com- 
mittees. Debate in the Senate itself is more extensive 
than in the House, and in general the appropriation 
bills come through this stage in their progress larger than 
ever. In the conferences which follow, the Senate usually 
prevails over the House. 

How much money will be spent by the government in 
any year is, therefore, impossible of determination until 
all the bills carrying appropriations have become law. It 



GOVERNMENT FINANCE 485 

is inevitable that the amount should be large and fre- Need of a 
quently out of proportion to the revenue for the same " ^®* 
period. The commission on economy and efficiency ap- 
pointed by President Taft, which made an exhaustive 
study of the causes of wastefulness in the national govern- 
ment, reported as a remedy for the conditions we have 
just discussed a plan for a comprehensive budget of the 
estimated expenses of the government. Such an estimate, 
prepared by the Secretary of the Treasury and trans- 
mitted to Congress with the indorsement of the President, 
would give that body something definite and authoritative 
to work upon. It would know that each item asked for 
had been planned to fit into a complete scheme of govern- 
ment expenditure and that the total amount would be 
nicely adjusted to the expected revenue for the year. 
Congress would thereby be put in a position to resist the 
pressure of outside influences, while all departmental 
attempts to care for their own peculiar interests at the 
expense of other departments would automatically cease. 
The United States is now the only great nation in the 
world which permits proposals for appropriations to 
originate in the miscellaneous committees of its legislative 
body. Every other great nation has a budget which 
originates with the executive. 

Practically the same evils are to be found in the state state prac- 
as in the national system of appropriations. The starting- J|j^nat^nal^ 
point is usually a report by the comptroller, auditor, or 
other chief financial officer, showing the appropriations 
for the preceding legislative period and an estimate of 
the needs of the various branches of the state government 
for the ensuing period. The ''general appropriation bill," 
which in most states carries grants of money for the sup- 
port of the several departments and institutions of the 
state, but not the appropriations for new buildings or 



486 



THE FUNCTIONS OF GOVERNMENT 



Part of the 
governor 



A state 
budget 



equipment or for any new miscellaneous causes of ex- 
penditure, always originates in a committee of the lower 
house. Other appropriations are provided for in bills 
introduced by the members of either house and referred 
to a variety of committees. The same selfish interests 
which operate to prevent careful and economical treat- 
ment of appropriations by the committees of Congress 
apply with equal force to those of the state legislatures. 

The final result in our state governments is made much 
better than it otherwise would be by the fact that the 
governor usually has a power not possessed by the Presi- 
dent, that of vetoing the items of appropriation bills. 
Where this is the case, the general appropriation bill at 
least has the benefit of a final revision by the governor, 
who well knows that he will be held politically responsible 
for extravagance. This sometimes, and very fortunately, 
results in the governor's being consulted as the bill is in 
course of preparation, a period at which his wisdom and 
responsibility can have more effect than through a veto 
after the measure has passed both houses. Other appro- 
priations generally come to the governor each in a separate 
bill. Many state constitutions require this, and it is the 
custom everywhere. With regard to these miscellaneous 
appropriations, the existence of the governor's veto seems 
to have given the legislature a feeling of irresponsibility. 
It is not uncommon to hear the sentiment expressed, 
"Let's put it up to the governor." Most governors in 
these days meet the responsibility thus shifted upon them 
by a vigorous use of the veto. 

The most necessary reform in the administration of 
state finance is the use of a budget emanating from the 
governor, and transmitted to the legislature with the 
weight of his authority behind it. An Ohio law of 19 13 
provides that upon estimates and figures submitted by 



GOVERNMENT FINANCE 487 

the several departments and the auditor, the governor 
shall submit at the beginning of each regular session a 
budget of current expenses for the next two years, together 
with the estimates of the various departments. New 
York adopted in the same year a somewhat different 
method. The budget is prepared by a state board of 
estimate consisting of the governor, lieutenant-governor, 
president pro tempore of the senate. Speaker of the assem- 
bly, comptroller, attorney-general, and commissioner of 
efficiency and economy. Alabama has provided that the 
governor, auditor, and attorney-general shall prepare the 
general revenue bill. In California the board of control 
prepares a careful set of estimates which the governor 
sends to the legislature. As the board of control is the 
governor's personal representative in the state govern- 
ment, this is very like the preparation of the budget by 
the governor himself. Another very much-to-be-desired 
reform is one suggested by Governor Hughes in his mes- 
sage to the New York legislature in 1910 — a budget 
for pubHc buildings, pubhc works, and institutional de- 
velopment.i ^q coherent plan for a continuous and 
well-balanced development of state activities and insti- 
tutions is possible so long as each appropriation must be 
treated in a special bill. 

The appropriations of counties, cities, and other sub- County^and^ 
divisions of the state were formerly made in the same " ^ 
hit-or-miss fashion which we have described for the state 
and nation. There has been Uttle or no improvement, so 
far as county boards are concerned. In cities, however, 
where only a few years ago the irregularity and wasteful- 
ness of appropriations were most scandalous, we find that 
the most advanced methods have been adopted to secure 

1 The board of control of California prepared for the sessions of 1913 
and 191S a budget of special appropriations which was fairly well adhered to. 



488 THE FUNCTIONS OF GOVERNMENT 

wisdom and economy in expenditure. Practically all 
the more recent city charters require a budget originating 
with the mayor, as in Boston, the city manager, as in 
Dayton, or the city commission, as in several hundred 
commission-governed cities. In New York City the budget 
is proposed by the board of estimate and apportionment, 
and the board of aldermen may lower or cut out altogether 
but cannot raise any item.^ 
Honesty and Of equal importance with the method of making ap- 
efficiency propriations is the method of seeing that the money 
appropriated is expended honestly and efficiently for the 
object for which it was appropriated. In the United 
States government this function is centralized in the 
Treasury Department, which has an auditor for each of 
the more important divisions. No money can be drawn 
from the treasury except by virtue of an appropriation 
by Congress, and it may be safely said that the United 
States is admirably protected against the danger of any 
person securing anything from the treasury to which he 
is not legally entitled. Indeed, the amount of red tape 
which has to be unwound in order to release the clutch of 
the treasury upon its funds is somewhat terrifying. As 
to the efficiency with which federal funds are expended, 
there is more room for doubt. ^ The commission on econ- 
omy and efficiency found many matters to criticize. 
Generally speaking, as compared with other governments, 
especially with our own state governments, that of the 

1 Several years ago the New York bureau of municipal research in- 
augurated a budget exhibit, at which were presented through the medium 
of models, pictures, tables, etc., what the city's money was being spent for. 
It had the effect of discouraging useless extravagance and at the same 
time of making the people wiUing to stand the burden of taxation for work 
the merit of which was made obvious by the exhibit. Similar exhibits have 
been undertaken with like good effect in other cities. 

2 The late Senator Nelson W. Aldrich, of Rhode Island, estimated a 
few years ago that there was $300,000,000 wasted each year in the admin- 
istration of the national government. 



GOVERNMENT FINANCE 489 

United States is relatively fairly efficient, owing to the con- 
centration of power over and responsibility for the conduct 
of the administration in the hands of the President and 
the high standards of honor and pride in their work which 
prevail among the officers of the United States. 

The disorganized character of state administration state audit- 
which we have already considered at some length has *"^ systems 
played an important part in bringing it to pass that state 
appropriations are sometimes dishonestly and very often 
inefficiently spent. Claims for payment from the state 
treasury are usually audited by the comptroller, auditor, 
or other chief financial officer. This audit, however, 
covers only the question as to whether the expense has 
been legally incurred, and where appropriations for in- 
stitutions and offices scattered over a great state are 
made, as is often the case, in lump sums, there is con- 
siderable opportunity, not only for waste, but for pecula- 
tion as well. As we have previously noted, boards of 
control directly subject to the governor have been estab- 
lished in several states with considerable power of super- 
vision over the expenditures of state institutions. The 
California board, which may be taken as fairly typical, 
has established a system of pre-audit by which the requi- 
sitions of every institution and department must be 
approved by the board of control before supplies may be 
ordered or contracts made. Very notable economies 
have been secured as a result of this supervision. Uniform 
systems of account have been installed in all institutions 
and departments, so that accurate comparisons between 
one and another are now possible. 

The accounts of cities are kept in a way to prevent City 
actual stealing from the treasury. Most cities of any *<^<^o"^*s 
considerable size have an auditor or comptroller elected 
directly by the people and entirely independent of the 



490 



THE FUNCTIONS OF GOVERNMENT 



Efficiency 
in city 
government 



city council. Every claim against the city has to be 
based upon an appropriation by the council, which fact 
is certified by the signatures of the chairman and clerk 
of that body. A claim to be paid out of the appropriation 
in question must be signed by the officer under whose 
direction the work is done or by whom the receipt of the 
supplies has been checked, and by the head of the depart- 
ment concerned. It still is not a valid warrant for drawing 
money from the treasury until it has received the approval 
of the auditor or comptroller. The money is finally paid 
by the treasurer, who is almost always independent of the 
comptroller. All the officers concerned in handling the 
city's money are under heavy bonds to perform their duties 
faithfully. Once or twice a year the books are audited by 
a certified public accountant selected by the mayor or 
council. The treasurer's and comptroller's accounts must 
balance, and proper receipts and vouchers must be on hand 
to prove the real character of each transaction. 

In the matter of efficiency, progress has been less rapid. 
We have already spoken of the need of reorganization of 
city governments in such a way as to give a single respon- 
sible head. Fundamentally it is impossible to get efficiency 
without an efficient method of organization. There are, 
however, certain changes in the details of financial ad- 
ministration which are indispensable to secure efficiency 
even under the best possible form of organization. The 
ordinary method of keeping city accounts is by a single- 
entry system, which shows very plainly the receipts and 
disbursements of the city but which throws no light at all 
upon the matters of revenue and expense. To know the 
real financial condition of the city, it is necessary to know 
how much the various activities of the city cost. Getting 
a total of the city's expenditures for parks, street repairing, 
sewers, etc., is the simplest form of such segregation. This 



GOVERNMENT FINANCE 491 

is but the beginning. To be useful to a city manager in 
determining the efficiency of the departments and officers 
under him, the segregation must be so detailed as to show 
the cost of each operation. A system of accounting which 
provides for that kind of segregation is called a " cost- 
accounting " system. Great modern business houses use 
such systems, but only a few of our cities have as yet 
taken advantage of them. 

Another needed reform in the matter of municipal and Uniform ac- 
county accounting is that it should be uniform in all the ^?^^^^ ^^^ 
cities and counties of a state. As long as each city keeps its counties 
accounts in its own way, there is no possibility of compari- 
son between one city and another. Several states have 
recognized their responsibilities in this regard and have . 
provided some method of securing at least partial uni- 
formity. In several states this goes no farther than to 
require an annual report of the financial transactions of 
cities, towns, and counties to be made to some state 
officer.^ This central officer can make his demand for 
information in such form as to require uniform systems 
of accounting, in order to make items he calls for readily 
come-at-able. So far, little use of this power has been 
made, the state authorities apparently being satisfied to 
get certain general information or grand totals. The 
Massachusetts bureau of statistics, the Wisconsin board of 
public affairs, the comptroller of the state of New York, 
and similar bureaus in Iowa, Indiana, and Ohio have pre- 
pared model schemes of accounting which, on request, 
may be installed in municipalities.^ The Indiana legis- 
lature in 1909 passed a law creating an examiner appointed 

1 In Massachusetts, the bureau of statistics ; in CaUfornia, the comptroller, 
etc. 

^It would not do to leave this subject without a word as to the Metz 
Fund, which has provided the means for investigating municipal accounting 
and for publishing numerous valuable works upon it. 



492 THE FUNCTIONS OF GOVERNMENT 

by the governor, and providing for the estabHshment of 
a state-wide system of uniform accounts, including all 
departments and branches of state and local government. 
The United States Bureau of the Census has done a good 
deal to enforce uniformity by gathering the financial 
statistics of cities of over 30,000 population. Hardly a 
beginning has been made in this country toward giving 
the state governments power to audit the expenditure of 
money by local authorities. 
State and It has been found that a state or city which employs a 

local pur- purchasing agent to buy needed supplies at wholesale 
agents in the open market, and keeps these supplies on hand, 

issuing them to the various departments as they require 
•them, can save a great deal of money. SuppUes can 
generally be bought to better advantage in the open 
market than by contract. Every standard article has a 
regular market price at which it is sold to the world of 
commerce. There are certain discounts from the market 
rate which purchasers may obtain by buying in large 
quantities and paying "cash." Centralized purchasing 
for all departments and the advantage which can be 
taken of trade and cash discounts enable the city to buy 
as cheaply as any factory or store within its hmits. Sup- 
plies which have to be made to order and public works 
and buildings must, unless the city undertakes the task 
itself, be the subject of competitive bidding. A good city 
charter, however, always provides for the city's rejecting 
all bids and doing the work itself if the contractor's price 
is too high. 
Public debts War, flood, fire, and other sudden disasters impose on 
government burdens greater than can be borne by the 
revenues of any one year. Extensive public improve- 
ments, too, call for a greater investment of .the capital of 
the community than can be saved out of the income of a 



GOVERNMENT FINANCE 493 

particular year. It is customary to provide for the cost of 
public disasters and improvements by borrowing money 
on the credit of the nation, state, city, county, or town, as 
the case may be. It may be asked why governments do 
not, like private individuals, save in advance, so that 
they may meet such emergencies without borrowing. It 
has, however, never been regarded as feasible for a gov- 
ernment to create a fund for the purpose of meeting these 
crises. Government accumulations, if kept in the form 
of money, would mean the withdrawal of vast quantities 
of capital from productive employment. If invested, it 
would involve the government in great difficulties in 
caring for its investments and it might not, at the time of 
emergency, be able to reduce its investments to cash. 
On the whole it has been generally agreed that to borrow 
and then to save definite amounts to pay off the loan is 
the wisest policy. 

The usual method of borrowing money is by an issue Bonds 
of bonds. Bonds are a promise to pay a given sum of 
money at the end of a period of years. They bear interest 
at a rate fixed by the law or ordinance authorizing the issue. 
The United States has, considering its resources, a very 
small bonded debt — October i, 1915, $1,131,832,788.29. 
It can borrow money at low rates because of the abso- 
lute confidence the public has in its ability to pay.^ 

^ The interest-bearing portion of the national debt was on June 30, 
1914 (see American Year Book, 1914), distributed as follows : 

2s. Consols of 1930 $646,250,150 

3S. Loan of 1908-1918 63,945,460 

4s. Loan of 1925 118,489,900 

2s. Panama Canal Loan '06 54,631,980 

2s. Panama Canal Loan '08 30,000,000 

3s. Panama Canal Loan '11 50,000,000 

23^s. Postal Savings bonds, ' II-' 1 2 .... 3,506,000 

23^5. Postal Savings bonds, total '12 .... 1,129,820 

$967,953,310 



494 



THE FUNCTIONS OF GOVERNMENT 



State debts 



City indebt- 
edness 



The states have not been great borrowers, as their 
position in our system of government does not necessitate 
large expenditures on pubHc works. On June 30, 19 13,' 
eleven states had no debt at all. The constitutions of 
the several states place quite strict hmitations on the 
power of the legislature to borrow money. There is some- 
times a limit (in New York, $1,000,000 ; in Ohio, $750,000) 
within which the legislature may borrow freely. Ohio 
permits no borrowing at all above this minimum, except 
to defend the state from invasion or insurrection or redeem 
the existing indebtedness. It is usual, however, except 
in case of war or insurrection, to require all propositions 
to create indebtedness above the minimum, if there is 
one, to be submitted to a popular vote. States borrow 
generally at from four to six per cent. 

When we turn to city governments, we find that they 
have been prodigious borrowers.^ The parks, boulevards, 
schools, sewers, waterworks, subways, light, heat and 
power plants, city halls, and all the rest of the multi- 
farious good things which cities now provide inevitably 
cost vast sums of money. The Bureau of the Census in 
its Report on "Financial Statistics of Cities Having a 
Population of over 30,000" (191 1) gives the total indebted- 
ness of such cities^ as $2,652,615,054. Of this sum 
$2,366,430,733 is funded or "bonded" debt. The re- 
mainder is short-term loans (usually in anticipation of 

iThe largest state debt at that time was that of Massachusetts, $117,- 
000,000, New York being a close second with $108,000,000. — American 
Year Book, 1913, p. 185. 

2 The bonded debt of the single city of New York is $1,164,440,884, or 
considerably larger than the interest-bearing debt of the United States, and 
over ten times as great as that of the state of New York. Boston has a debt 
of $118,000,000; Philadelphia, of $112,000,000, while practically every city 
in the country has a substantial indebtedness. — American Year Book, 1913, 
p. 234. 

' Includes county and school district debts where these imits are identical 
with city. 



GOVERNMENT FINANCE ' 495 

the taxes of the current year) and other temporary obH- 
gations. Some persons are very much concerned because 
cities spend so much money and assume such heavy 
burdens of debt. Of course no city should borrow more 
than it can reasonably repay. Short of that, however, the 
cities should be concerned rather with whether the object 
of expenditure is worth while and whether the work is effi- 
ciently done, than with the amount of the indebtedness. 

A distinction should be made between that portion of Debts for 
a municipal indebtedness which a municipality incurs ^^^^^ 
for general improvements such as parks, libraries, schools, enterprises 
or sewers, and that which it incurs for the purpose of 
building or acquiring income-producing enterprises. The 
former produce no money income, while the latter, if 
properly managed, will produce a revenue sufficient to 
pay the interest on the debt and provide for the ultimate 
payment of the principal. The Bureau of the Census, in 
the report quoted in the last paragraph, shows that in 
1911, of the total debt of municipalities, $1,863,800,895 
was for general improvements and $788,814,159 was 
invested in public service enterprises. 

The debt-incurring capacity of most cities is limited Debt limits 
by state law or city charter to a certain proportion of the °^ "*^®® 
assessed valuation of its property. We have already seen 
some of the consequences in this respect of a low valua- 
tion of property. The fact that the law treats both kinds 
of indebtedness, for income and for non-income producing 
improvements, alike also works a real hardship. From 
the bookkeeping standpoint a debt is a debt, but from the 
practical point of view there is a wide difference between 
an absolute outlay without hope of financial return and a 
profitable investment. Cities should have greater lati- 
tude in borrowing for investment in public service enter- 
prises. City .bond issues usually require, to be valid, a 



496 THE FUNCTIONS OF GOVERNMENT 

two-thirds majority of those voting at a special election 
called for the purpose. 
Repayment Provision is always made, in the law or ordinance 
of debts authorizing a bond issue, for the payment of the principal. 
The old method was the establishment of a ''sinking 
fund." By this method a certain sum each year was set 
aside for investment, in the bonds in question or others. 
The interest earned by these investments was added to 
the annual appropriation. Such a fund of course increases 
rapidly, and it is easy to compute what the amount each 
year set aside must be to pay off the debt before it finally 
falls due. The later practice, however, is to number the 
bonds in series and to make the bonds bearing certain 
numbers redeemable each year. This is simpler than a 
sinking fund, as it does not involve the care of investments, 
and because of the progressive reduction of the interest 
charge it means a smaller total expenditure. 

SUGGESTIONS FOR FURTHER STUDY 

An indispensable book on the general subject of this chapter is 
Plehn, C. C, Government Finance in the United States. 

Budget : The most brilliant criticisms of our system are to be 
found in Bryce, ch. xvii, and Wilson, Woodrow, Congressional 
Government, ch. iii. See also Beard, pp. 365-373, 708-713, and 
Readings, pp. 338-342. The actual expenditures of the United States 
may be kept track of by the use of the Statistical Abstract of the 
United States. Local expenditures will be found in United States 
Bureau of the Census, Reports on "Financial Reports of Cities of 
over 30,000 Population." Reinsch, P, S., Readings in American 
State Government, pp. 56-61 ; and Munro, W. B., Principles and 
Methods of Municipal Administration, ch. x, are very valuable. 

For a good account of the English budget system see Lowell, 
A. L., Government of England, vol. i, pp. 279-291. Two messages 
from President Taft urging a budget system on Congress may be 
found in House Document 854, 62d Congress, 2d Session, and 
Senate Document 11 13, 63d Congress, ist Session. 



GOVERNMENT FINANCE 497 

Teachers may also consult Agger, E. E., Budget in American 
Commonwealths, Columbia University Studies, vol. xxv, No. 2 ; 
BoGART, E. L., Financial Procedure in the State Legislatures, Annals 
of the American Academy of Political Science, vol. viii, pp. 236-258 ; 
Cleveland, F. A., A State Budget, Municipal Research, No. 58, 
February, 191 5. 

Efficiency : The movement toward efficiency in government by 
better accounting methods is best brought out in the publications 
of the New York bureau of municipal research and the Chicago 
bureau of public efficiency. Efficiency in City Government, Annals 
of the American Academy of Political and Social Science, vol. xli 
(May, 191 2), and Bruere, Henry, The New City Government, are 
very valuable. Munro, W. B., Principles and Methods of Municipal 
Administration, ch. i, gives a brief sketch. 

Indebtedness : Beard, C. A., American Government and Politics, 
pp. 706-708; Plehn, C. C, Introduction to Public Finance, Part iii. 
For the actual figures see United States Bureau of the Census, 
Special Report on Wealth, Debt, and Taxation (1913) and Annual 
Reports on "Financial Statistics of Cities Having a Population of 
over 30,000." 

Special Note : Secure the report of the state auditor or the 
comptroller and similar reports for your own city. If local financial 
statistics are collected by any state officer, secure his report. Also 
secure copy of general appropriation bill of state and budget of city, 
if available. 

Topics : 

The best topics for investigation by the pupn are those which 
are necessary to fill up the details of this chapter, i.e. your state 
and local budget and accounting systems, their expenditures, 
debts, etc. 



APPENDICES 



APPENDIX A 
ARTICLES OF CONFEDERATION 

To all to whom these presents shall come, we the undersigned Delegates 
of the States affixed to our names, send greeting : 

Whereas, The Delegates of the United States of America, in 
Congress assembled, did, on the 15th day of November, in the year 
of our Lord 1777, and in the second year of the Independence of 
America, agree to certain Articles of Confederation and perpetual 
Union between the States of New Hampshire, Massachusetts Bay, 
Rhode Island and Providence Plantations, Connecticut, New York, 
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North 
CaroHna, South Carohna, and Georgia, in the words following, viz. : 

Articles oe Confederation and Perpetual Union between the 
States of New Hampshire, Massachusetts Bay, Rhode Island 
AND Providence Plantations, Connecticut, New York, New 
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North 
Carolina, South Carolina, and Georgia. 

Article I. The style of this Confederacy shall be "The United 
States of America." 

Art. II. Each State retains its sovereignty, freedom and inde- 
pendence, and every power, jurisdiction and right, which is not by 
this Confederation expressly delegated to the United States, in Con- 
gress assembled. 

Art. III. The said States hereby severally enter into a firm league 
of friendship with each other for their common defense, the security 
of their liberties, and their mutual and general welfare, binding 
themselves to assist each other against all force offered to, or attacks 
made upon them, or any of them, on account of rehgion, sovereignty, 
trade, or any other pretense whatever. 

Art. IV. The better to secure and perpetuate mutual friendship 
and intercourse among the people of the different States of this 
Union, the free inhabitants of each of these States, paupers, vaga- 
bonds, and fugitives from justice excepted, shall be entitled to all 

SOI 



502 APPENDIX A 

privileges and immunities of free citizens in the several States; and 
the people of each State shall have free ingress and regress to and from 
any other State, and shall enjoy therein all the privileges of trade and 
commerce, subject to the same duties, impositions and restrictions 
as the inhabitants thereof respectively; provided, that such restric- 
tions shall not extend so far as to prevent the removal of property 
imported into any State, to any other State of which the owner is an 
inhabitant ; provided also, that no imposition, duties or restriction 
shall be laid by any State on the property of the United States, or 
either of them. 

If any person guilty of or charged with treason, felony, or other 
high misdemeanor in any State, shall flee from justice, and be found 
in any of the United States, he shall, upon demand of the Governor 
or executive power of the State from which he fled, be delivered up 
and removed to the State having jurisdiction of his offense. 

FuU faith and credit shall be given in each of these States to the 
records, acts and judicial proceedings of the courts and magistrates 
of every other State. 

Art. V. For the more convenient management of the general 
interests of the United States, delegates shall be annually appointed, 
in such manner as the Legislature of each State shall direct, to meet 
in Congress, on the first Monday in November in every year, with a 
power reserved to each State to recall its delegates, or any of them, 
at any time within the year, and to send others in their stead for the 
remainder of the year. 

No State shall be represented in Congress by less than two, nor 
by more than seven members ; and no person shall be capable of being 
a delegate for more than three years in any term of six years ; nor 
shall any person, being a delegate, be capable of holding any office 
under the United States, for which he, or another for his benefit, 
receives any salary, fees or emolument of any kind. 

Each State shall maintain its own delegates in a meeting of the 
States, and while they act as members of the committee of the States. 

In determining questions in the United States, in Congress assem- 
bled, each State shall have one vote. 

Freedom of speech and debate in Congress shall not be impeached 
or questioned in any court, or place out of Congress ; and the mem- 
bers of Congress shall be protected in their persons from arrests and 
imprisonments during the time of their going to and from, and 
attendance on Congress, except for treason, felony, or breach of the 
peace. 



ARTICLES OF CONFEDERATION 503 

Art. VI. No State, without the consent of the United States, in 
Congress assembled, shall send any embassy to, or receive any 
embassy from, or enter into any conference, agreement, alliance, 
or treaty with any King, Prince, or State ; nor shall any person hold- 
ing any office of profit or trust under the United States, or any of 
them, accept of any present, emolument, office, or title of any kind 
whatever from any King, Prince, or foreign State; nor shall the 
United States in Congress assembled, or any of them, grant any title 
of nobility. 

No two or more States shall enter into any treaty, confederation or 
alliance whatever between them, without the consent of the United 
States, in Congress assembled, specifying accurately the purposes 
for which the same is to be entered into, and how long it shall 
continue. 

No State shall lay any imposts or duties, which may interfere with 
any stipulations in treaties entered into by the United States, in Con- 
gress assembled, with any King, Prince, or State, in pursuance of any 
treaties already proposed by Congress to the courts of France and 
Spain. 

No vessels of war shall be kept up in time of peace by any State, 
except such number only as shall be deemed necessary by the United 
States, in Congress assembled, for the defense of such State, or its 
trade ; nor shall any body of forces be kept up by any State, in time 
of peace, except such number only, as in the judgment of the United 
States, in Congress assembled, shall be deemed requisite to garrison 
the forts necessary for the defense of such State ; but every State shall 
always keep up a well regulated and disciplined militia, sufficiently 
armed and accoutered, and shall provide and have constantly ready 
for use, in public stores, a due number of field pieces and tents, and a 
proper quantity of arms, ammunition and camp equipage. 

No State shall engage in any war without the consent of the United 
States, in Congress assembled, unless such State be actually invaded 
by enemies, or shall have received certain advice of a resolution 
being formed by some nation of Indians to invade such State, and the 
danger is so imminent as not to admit of a delay till the United States, 
in Congress assembled, can be consulted. Nor shall any State grant 
commissions to any ships or vessels of war, nor letters of marque or 
reprisal, except it be after a declaration of war by. the United States, 
in Congress assembled, and then only against the Kingdom or State, 
and the subjects thereof, against which war has been so declared ; and 
under such regulations as shall be established by the United States, 



504 APPENDIX A 

in Congress assembled ; unless such State be infested by pirates, in 
which case vessels of war may be fitted out for that occasion, and kept 
so long as the danger shall continue, or until the United States, in 
Congress assembled, shall determine otherwise. 

Art. VII. When land forces are raised by any State for the 
common defense, all officers of or under the rank of colonel shall be 
appointed by the Legislature of each State, respectively, by whom 
such forces shall be raised, or in such manner as such State shall direct, 
and all vacancies shall be filled up by the State which first made the 
appointment. 

Art. VIII. All charges of war, and all other expenses that shall 
be incurred for the common defense or general welfare, and allowed 
by the United States, in Congress assembled, shall be defrayed out 
of the common treasury, which shaU be supplied by the several States, 
in proportion to the value of all land within each State, granted to or 
surveyed for any person, as such land and the buildings and improve- 
ments thereon shall be estimated according to such mode as the United 
States, in Congress assembled, shall, from time to time, direct and 
appoint. The taxes for paying that proportion shall be laid and levied 
by the authority and direction of the Legislatures of the several 
States, within the time agreed upon by the United States, in Congress 
assembled. 

Art. IX. The United States, in Congress assembled, shall have the 
sole and exclusive right and power of determining on peace and war, 
except in the cases mentioned in the sixth article ; of sending and 
receiving ambassadors ; entering into treaties and alliances ; provided, 
that no treaty of commerce shall be made whereby the legislative 
power of the respective States shall be restrained from imposing such 
imposts and duties on foreigners, as their own people are subjected to, 
or from prohibiting the exportation or importation of any species of 
goods or commodities whatsoever ; of establishing rules for deciding, 
in aU cases, what captures on land or water shall be legal, and in what 
manner prizes taken by land or naval forces in the service of the 
United States shall be divided or appropriated ; of granting letters 
of marque and reprisal in times of peace ; appointing courts for the 
trial of piracies and felonies committed on the high seas, and establish- 
ing courts for receiving and determining finally appeals in all cases of 
captures; provided, that no member of Congress shall be appointed 
a judge of any of the said courts. 

The United States, in Congress assembled, shall also be the last 
resort on appeal in aU disputes and differences now subsisting, or 



ARTICLES OF CONFEDERATION 505 

that hereafter may arise, between twa or more States concerning 
boundary, jurisdiction, or any other cause whatever ; which authority 
shall always be exercised in the manner following : Whenever the 
legislative or executive authority, or lawful agent of any State in 
controversy with another, shall present a petition to Congress, stating 
the matter in question, and praying for a hearing, notice thereof 
shall be given, by order of Congress, to the legislative or executive 
authority of the other State in controversy, and a day assigned for 
the appearance of the parties by their lawful agents, who shall then 
be directed to appoint, by joint consent, commissioners or judges to 
constitute a court for hearing and determining the matter in question ; 
but if they can not agree, Congress shall name three persons out of 
each of the United States, and from the list of such persons each 
party shall alternately strike out one, the petitioners beginning, until 
the number shall be reduced to thirteen ; and from that number not 
less than seven, nor more than nine names, as Congress shall direct, 
shall, in the presence of Congress, be drawn out by lot, and the 
persons whose names shall be so drawn, or any five of them, shall be 
commissioners or judges to hear and finally determine the controversy, 
so always as a major part of the judges who shall hear the cause shall 
agree in the determination ; and if either party shall neglect to attend 
at the day appointed, without showing reasons, which Congress shall 
judge sufficient, or being present shall refuse to strike, the Congress 
shall proceed to nominate three persons out of each State, and the 
Secretary of Congress shall strike in behalf of such party absent or 
refusing ; and the judgment and sentence of the court to be appointed, 
in the manner before prescribed, shall be final and conclusive ; and 
if any of the parties shall refuse to submit to the authority of such 
court, or to appear or defend their claim or cause, the court shall, 
nevertheless, proceed to pronounce sentence or judgment, which shall 
in like manner be final and decisive, the judgment or sentence and 
other proceedings being in either case transmitted to Congress, and 
lodged among the Acts of Congress for the security of the parties 
concerned; provided, that every commissioner, before he sits in 
judgment, shall take an oath, to be administered by one of the Judges 
of the Supreme or Superior Court of the State where the cause shall 
be tried, " well and truly to hear and determine the matter in question, 
according to the best of his judgment, without favor, affection, or 
hope of reward"; provided, also, that no State shall be deprived of 
territory for the benefit of the United States. 

All controversies concerning the private right of soil claimed under 



5o6 APPENDIX A 

dififerent grants of two or more States, whose jurisdictions as they 
may respect such lands, and the States which passed such grants, are 
adjusted, the said grants, or either of them, being at the same time 
claimed to have originated antecedent to such settlement of jurisdic- 
tion, shall, on the petition of either party to the Congress of the 
United States, be finally determined as near as may be in the same 
manner as is before described for deciding disputes respecting terri- 
torial jurisdiction between different States. 

The United States, in Congress assembled, shall also have the sole 
and exclusive right and power of regulating the alloy and value of 
coin struck by their own authority, or by that of the respective States ; 
fixing the standard of weights and measures throughout the United 
States; regulating the trade, and managing all affairs with the 
Indians, not members of any of the States ; provided, that the legisla- 
tive right of any State, within its own hmits, be not infringed or 
violated; estabUshing and regulating postoffices from one State to 
another, throughout all the United States, and exacting such postage 
on the papers passing through the same as may be requisite to defray 
the expenses of the said office ; appointing all officers of the land forces 
in the service of the United States, excepting regimental officers; 
appointing all the officers of the naval forces, and commissioning all 
officers whatever in the service of the United States ; making rules 
for the government and regulation of the said land and naval forces, 
and directing their operations. 

The United States, in Congress assembled, shall have authority to 
appoint a committee, to sit in the recess of Congress, to be denomi- 
nated a "Committee of the States," and to consist of one delegate 
from each State; and to appoint such other committees and civil 
officers as may be necessary for managing the general affairs of the 
United States under their direction ; to appoint one of their number 
to preside ; provided, that no person be allowed to serve in the office 
of President more than one year in any term of three years ; to ascer- 
tain the necessary sums of money to be raised for the service of the 
United States, and to appropriate and apply the same for defraying 
the public expenses ; to borrow money or emit bills on the credit of 
the United States, transmitting every half year to the respective 
States an account of the sums of money so borrowed or emitted ; to 
build and equip a navy ; to agree upon the number of land forces, and 
to make requisitions from each State for its quota, in proportion to the 
number of white inhabitants in such State, which requisition shall 
be binding, and thereupon the Legislature of each State shall appoint 



ARTICLES OF CONFEDERATION 507 

the regimental ojEficers, raise the men, and clothe, arm and equip them 
in a soldier-like manner, at the expense of the United States; and 
the ofi&cers and men so clothed, armed and equipped shall march to 
the place appointed, and within the time agreed on by the United 
States, in Congress assembled. But if the United States, in Congress 
assembled, shall, on consideration of circumstances, judge proper 
that any State should not raise men, or should raise a smaller number 
than its quota, and that any other State should raise a greater number 
of men than the quota thereof, such extra number shall be raised, 
officered, clothed, armed, and equipped in the same manner as the 
quota of such State, unless the Legislature of such State shall judge 
that such extra number can not be safely spared out of the same, in 
which case they shall raise, olB&cer, clothe, arm, and equip as many of 
such extra number as they judge can be safely spared. And the 
officers and men so clothed, armed, and equipped shall march to the 
place appointed, and within the time agreed on by the United States, 
in Congress assembled. 

The United States, in Congress assembled, shall never engage in a 
war, nor grant letters of marque and reprisal in time of peace, nor 
enter into any treaties or alliances, nor coin money, nor regulate the 
value thereof, nor ascertain the sums and expenses necessary for the 
defense and welfare of the United States, or any of them, nor emit bills, 
nor borrow money on the credit of the United States, nor appropriate 
money, nor agree upon the number of vessels of war to be built or 
purchased, or the number of land or sea forces to be raised, nor ap- 
point a commander-in-chief of the army or navy, unless nine States 
assent to the same, nor shall a question on any other point, except 
for adjourning from day to day, be determined, unless by the votes of 
a majority of the United States, in Congress assembled. 

The Congress of the United States shall have power to adjourn to 
any time within the year, and to any place within the United States, 
so that no period of adjournment be for a longer duration than the 
space of six months ; and shall publish the journal of their proceedings 
monthly, except such parts thereof relating to treaties, alliances, or 
military operations, as in their judgment require secrecy; and the 
yeas and nays of the delegates of each State on any question shall be 
entered on the journal, when it is desired by any delegate ; and the 
delegates of a State, or any of them, at his or their request, shall be 
furnished with a transcript of the said journal, except such parts as 
are above excepted, to lay before the Legislatures of the several 
States. 



5o8 APPENDIX A 

Art. X. The Committee of the States, or any nine of them, shall 
be authorized to execute, in the recess of Congress, such of the powers 
of Congress as the United States, in Congress assembled, by the 
consent of nine States, shall, from time to time, think expedient to 
vest them with; provided, that no power be delegated to the said 
committee, for the exercise of which, by the Articles of Confederation, 
the voice of nine States in the Congress of the United States as- 
sembled is requisite. 

Art. XI. Canada acceding to this Confederation, and joining in 
the measures of the United States, shall be admitted into, and entitled 
to all the advantages of this Union; but no other colony shall be 
admitted into the same, unless such admission be agreed to by nine 
States. 

Art, XII. AU bills of credit emitted, moneys borrowed and 
debts contracted, by or under the authority of Congress, before 
the assembling of the United States, in pursuance of the present 
Confederation, shall be deemed and considered as a charge against 
the United States, for payment and satisfaction whereof the said 
United States and the public faith are hereby solemnly pledged. 

Art. XIII. Every State shall abide by the determinations of the 
United States, in Congress assembled, on all questions which by this 
Confederation are submitted to them. And the Articles of this 
Confederation shall be inviolably observed by every State, and the 
Union shaU be perpetual ; nor shall any alteration at any time here- 
after be made in any of them, unless such alteration be agreed to in a 
Congress of the United States, and be afterwards confirmed by the 
Legislatures of every State. 

And Whereas, It hath pleased the Great Governor of the world 
to incline the hearts of the Legislatures we respectively represent in 
Congress, to approve of, and to authorize us to ratify the said 
Articles of Confederation and perpetual Union, Know ye that we, 
the undersigned delegates, by virtue of the power and authority 
to us given for that purpose, do by these presents, in the name and 
in behalf of our respective constituents, fuUy and entirely ratify 
and confirm each and every of the said Articles of Confederation 
and perpetual Union, and all and singiilar the matters and things 
therein contained. 

And we do further solemnly plight and engage the faith of our 
respective constituents, that they shall abide by the determinations 
of the United States, in Congress assembled, on all questions which 
by the said Confederation are submitted to them; and that the 



ARTICLES OF CONFEDERATION 



509 



articles thereof shall be inviolably observed by the States we respec- 
tively represent, and that the Union shall be perpetual. 

In witness whereof, we have hereunto set our hands in Congress. 
Done at Philadelphia, in the State of Pennsylvania, the 9th day of 
July, in the year of our Lord, 1778, and in the 3d year of the Independ- 
ence of America. 



JOSIAH B ARTLETT, JOHN WeNTWORTH, Jr. , 

Aug. 8, 1778. 

Francis Dana, 
James Lovell, 
Samuel Holton, 

John Collins, 

Titus Hosmer, 
Andrew Adam, 

William Duer, 
Gouverneur Morris 



John Hancock, 
Samuel Adams, 
Elbridge Gerry, 

William Ellery, 
Henry Marchant, 
Roger Sherman, 
Sam'l Huntington, 
Oliver Wolcott, 
James Duane, 
Francis Lewis, 



John Witherspoon, Nathaniel Scudder 

Robert Morris, William Clingan, 
Daniel Roberdeau, Joseph Reed, 
J. Bayaed Smith, July 22, 1778. 

Thomas McKean, John Dickinson, 

Feb. 12, 1779. May 5, 1779. 

Nicholas Van Dyke, 
John Hanson, Daniel Carroll, 

March i, 1781. March i, 1781. 

Richard Henry Lee, John Harvie, 
John Banister, F. Lightfoot Lee, 

Thomas Adams, 

John Penn, Cornelius Harnett, 

July 21, 1778. John Williams, 

Henry Laurens, Richard Hutson, 

Wm. Henry Drayton, Thos. Heyward, Jr. 

John Matthews, 

John Walton, Edward Telfair, 

July 24, 1778. Edw'd Longworthy, 



On the part and behalf 
of the State of New 
Hampshire. 

On the part and behalf of 
the State of Massachu- 
s'ts Bay. 

On the part and behalf of 
the State of Rhode 
Island and Providence 
Plantations. 

On the part and behalf 
of the State of Con- 
necticut. 

On the part and behalf of 
the State of New York. 

On the part and behalf of 
the State of New Jersey- 
November 26, 1778. 

On the part and behalf of 
the State of Pennsyl- 
vania. 

On the part and behalf of 
the State of Delaware. 

On the part and behalf of 
the State of Maryland. 

On the part and behalf 
of the State of Virginia. 

On the part and behalf 
of the State of North 
Carolina. 

On the part and behalf 
of the State of South 
Carolina. 

On the part and behalf 
of the State of Georgia. 



5IO 



APPENDIX A 



The Articles of Confederation were ratified by the States as follows : 



South Carolina 

New York 

Rhode Island 

Connecticut 

Georgia 

New Hampshire 

Pennsylvania 



February 5, 1778 

February 6, 1778 

February 9, 1778 

February 12, 1778 

February 26, 1778 

March 4, 1778 

March 6, 1778 



Massachusetts March 10, 1778 
North Carolina April 5, 1778 
New Jersey November 19, 1778 
Virginia December 15, 1778 
Delaware February i, 1779 
Maryland January 30, 1781 



The ratification by all the States was formally announced to the 
public March i, 1781. 



APPENDIX B 
CONSTITUTION OF THE UNITED STATES 

PREAMBLE 

We, the people of the United States, in order to form a more perfect 
union, establish justice, insure domestic tranquilhty, provide for the 
common defense, promote the general welfare, and secure the bless- 
ings of liberty to ourselves and our posterity, do ordain and establish 
this Constitution for the United States of America. 

ARTICLE I 

Legislative Powters vested in Congress 

Section i. All legislative powers herein granted shall be vested 
in a Congress of the United States, which shall consist of a Senate and 
House of Representatives. 

Composition oe the House of Representatives 

Sec. 2. I. The House of Representatives shall be composed of 
members chosen every second year by the people of the several States, 
and the electors in each State shall have the qualifications requisite for 
electors of the most numerous branch of the State Legislature. 

Qualification of Representatives. 

2. No person shall be a Representative who shall not have attained 
the age of twenty-five years and been seven years a citizen of the 
United States, and who shall not, when elected, be an inhabitant of 
that State in which he shall be chosen. 

Apportionment of Representatives and direct taxes — Census. 

3. [Representatives and direct taxes shall be apportioned among 
the several States which may be included within this Union, accord- 
ing to their respective numbers, which shall be determined by adding 
to the whole number of free persons, including those bound to service 
for a term of years, and excluding Indians not taxed, three fifths of aU 
other persons. The actual enumeration shall be made within three 
years after the first meeting of the Congress of the United States, and 



512 APPENDIX B 

within every subsequent term of ten years, in such manner as they 
shall by law direct. The number of Representatives shall not exceed 
one for every thirty thousand, but each State shall have at least one 
Representative ; and until such enumeration shall be made, the State 
of New Hampshire shall be entitled to choose three, Massachusetts 
eight, Rhode Island and Providence Plantations one, Connecticut 
five, New York six. New Jersey four, Pennsylvania eight, Delaware 
one, Maryland six, Virginia ten, North Carolina five. South Carolina 
five, and Georgia three.] 

This clause has been superseded, so far as it relates to representation, by 
Section 2 of the Fourteenth Amendment to the Constitution. 

Filling of vacancies in representation. 

4. When vacancies happen in the representation from any State, 
the executive authority thereof shall issue writs of election to fill 
such vacancies. 

Selection of officers — Power of impeachment. 

5. The House of Representatives shall choose their Speaker and 
other officers, and shaU have the sole power of impeachment. 

Of the Senate 
Number of senators. 

Sec. 3. I. The Senate of the United States shall be composed of 
two Senators from each State, chosen by the Legislature thereof, for 
six years, and each Senator shall have one vote. 

Classification of senators —^ Filling of vacancies. 

2. Immediately after they shall be assembled in consequence of 
the first election, they shall be divdded as equally as may be into 
three classes. The seats of the Senators of the first class shall be 
vacated at the expiration of the second year, of the second class at 
the expiration of the fourth year, and of the third class at the expira- 
tion of the sixth year, so that one third may be chosen every second 
year; and if vacancies happen, by resignation or otherwise, during the 
recess of the Legislature of any State, the executive thereof may make 
temporary appointments until the next meeting of the Legislature, 
which shall then fill such vacancies. 

Qualifications of senators. 

3. No person shall be a Senator who shall not have attained the 
age of thirty years, and been nine years a citizen of the United States, 



CONSTITUTION OF THE UNITED STATES 513 

and who shall not, when elected, be an inhabitant of the State for 
which he shall be chosen. 

Vice-President to he president of senate. 

4. The Vice-President of the United States shall be president of 
the Senate, but shall have no voice unless they shall be equally- 
divided. 

Selection of officers — President pro tempore. 

5. The Senate shall choose their ofl&cers, and have a President 
pro tempore, in the absence of the Vice-President, or when he shall 
exercise the office of President of the United States. 

Senate to try impeachments. 

6. The Senate shall have the sole power to try all impeachments; 
when sitting for that purpose, they shall be on oath or affirmation. 
When the President of the United States is tried, the Chief Justice 
shall preside ; and no person shall be convicted without the concur- 
rence of two thirds of the members present. 

Judgment in cases of impeachment. 

7. Judgment in cases of impeachment shall not extend further than 
to removal from office and disqualification to hold and enjoy any 
office of honor, trust, or profit under the United States ; but the party 
convicted shall, nevertheless, be liable and subject to indictment, 
trial, judgment, and punishment according to law. 

Election of Senators and Representatives — Meetings of 

Congress 

Control of congressional elections. 

Sec. 4. I. The times, places, and manner of holding elections for 
Senators and Representatives shall be prescribed in each State by 
the Legislature thereof ; but the Congress may at any time, by law, 
make or alter such regulations, except as to the places of choosing 
Senators. 

Time for assembling of Congress. 

2. The Congress shall assemble at least once in every year, and such 
meeting shall be on the first Monday in December, unless they shall, 
by law, appoint a different day. 



514 APPENDIX B 

Powers and Duties of Each House of Congress 

Sole judge of qualifications of members — Regulations as to quorum. 

Sec. 5. I. Each house shall be the judge of the elections, returns, 
and qualifications of its own members, and a majority of each shall 
constitute a quorum to do business ; but a smaller number may ad- 
journ from day to day, and may be authorized to compel the attend- 
ance of absent members, in such manner and imder such penalties as 
each house may provide. 

Each house to determine its own rides. 

2. Each house may determine the rules of its proceedings, punish its 
members for disorderly behavior, and, with the concurrence of two 
thirds, expel a member. 

Journals and yeas and nays. 

3. Each house shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may, in their 
judgment, require secrecy ; and the ayes and noes of the members of 
either house, on any question, shall, at the desire of one fifth of those 
present, be entered on the journal. 

Adjournment. 

4. Neither house, during the session of Congress, shall, without 
the consent of the other, adjourn for more than three days, nor to 
any other place than that in which the two houses shall be sitting. 

Compensation, Privileges, and Disabilities of Senators and 

Representatives 

Compensation — Privileges. 

Sec. 6. i. The Senators and Representatives shall receive a com- 
pensation for their services, to be ascertained by law, and paid out of 
the treasury of the United States. They shall, in aU cases, except 
treason, felony, and breach of the peace, be privileged from arrest 
during their attendance at the session of their respective houses, and 
in going to and returning from the same ; and for any speech or debate 
in either house, they shall not be questioned in any other place. 

Disability to hold other offices. 

2. No Senator or Representative shall, during the time for which 
he was elected, be appointed to any civil office under the authority 



CONSTITUTION OF THE UNITED STATES 515 

of the United States, which shall have been created, or the emolu- 
ments whereof shall have been increased, during such time ; and no 
person holding any ofi&ce under the United States shall be a member 
of either house during his continuance in office. 

[See also Section 3 of the Fourteenth Amendment.] 

Mode of Passing Laws 

Revenue bills to originate in house. 

Sec. 7. I. All bills for raising revenue shall originate in the House 
of Representatives, but the Senate may propose or concur with amend- 
ments as on other bills. . 

Laws, how enacted — Veto power of President. 

2. Every bill which shall have passed the House of Representatives 
and the Senate, shall, before it becomes a law, be presented to the 
President of the United States ; if he approve, he shall sign it, but if 
not, he shall return it, with his objections, to that house in which it 
shall have originated, who shall enter the objections at large on their 
journal, and proceed to reconsider it. If after such reconsideration 
two thirds of that house shall agree to pass the bill, it shall be sent, 
together with the objections, to the other house, by which it shall 
likewise be reconsidered, and if approved by two thirds of that house 
it shall become a law. But in all such cases the votes of both houses 
shall be determined by ayes and noes ; and the names of the persons 
voting for and against the bill shall be entered on the journal of each 
house, respectively. If any bill shall not be returned by the President 
within ten days (Sundays excepted) after it shall have been presented 
to him, the same shall be a law, in like manner as if he had signed it, 
unless the Congress, by their adjournment, prevent its return, in 
which case it shall not be a law. 

Concurrent orders, resolutions, etc., to be passed on by President. 

3. Every order, resolution, or vote, to which the concurrence of 
the Senate and the House of Representatives may be necessary 
(except on a question of adjournment), shall be presented to the Presi- 
dent of the United States; and, before the same shall take effect, 
shall be approved by him, or, being disapproved by him, shall be 
repassed by two thirds of the Senate and House of Representa- 
tives, according to the rules and limitations prescribed in the case 
of a bill. 



5i6 APPENDIX B 

Powers Granted to Congress 
Taxation. 

Sec. 8. i. The Congress shall have power to lay and collect taxes, 

duties, imposts, and excises, to pay the debts and provide for the 

common defense and general welfare of the United States; but all 

duties, imposts, and excises shall be uniform throughout the United 

States. 

Borrowing of money. 

2. To borrow money on the credit of the United States. 
Regulation of commerce. 

3. To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes. 

Naturalization and bankruptcy. 

4. To establish an uniform rule of naturalization, and uniform 
laws on the subject of bankruptcies throughout the United States. 

Money, weights, and measures. 

5. To coin money, regulate the value thereof and of foreign coins, 
and fix the standard of weights and measures. 

Counterfeiting. 

6. To provide for the punishment of counterfeiting the securities 
and current coin of the United States. 

Post offices. 

7. To establish post offices and post roads. 

Patents and copyrights. 

8. To promote the progress of science and useful arts, by securing, 
for limited times, to authors and inventors, the exclusive right to their 
respective writings and discoveries. 

Inferior courts. 

9. To constitute tribunals inferior to the Supreme Court. 

Piracies, felonies, etc. 

10. To define and punish piracies and felonies committed on the 
high seas, and offenses against the laws of nations. 

War, marque and reprisal. 

1 1 . To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water. 



CONSTITUTION OF THE UNITED STATES 517 

Army. 

12. To raise and support armies ; but no appropriation of money 
to that use shall be for a longer term than two years. 

Navy. 

13. To provide and maintain a navy. 

Land and naval forces. 

14. To make rules for the government and regulation of the land 
and naval forces. 

Calling out militia. 

15. To provide for calling forth the militia to execute the laws of 
the Union, suppress insurrections, and repel invasions. 

Organizing, arming, and disciplining militia. 

16. To provide for organizing, arming, and disciplining the militia, 
and for governing such part of them as may be employed in the serv- 
ice of the United States, reserving to the States, respectively, the 
appointment of the officers, and the authority of training the militia 
according to the discipline prescribed by Congress. 

Exclusive legislation over District of Columbia, etc. 

17. To exercise exclusive legislation, in all cases whatsoever, over 
such district (not exceeding ten miles square) as may, by cession of 
particular States, and the acceptance of Congress, become the seat of 
government of the United States, and to exercise like authority over 
all places purchased by the consent of the Legislature of the State 
in which the same shall be, for the erection of forts, magazines, 
arsenals, dockyards, and other needful buildings. 

To enact laws necessary to enforce Constitution, etc. 

18. To make all laws which shall be necessary and proper for 
carrjdng into execution the foregoing powers, and all other powers 
vested by this Constitution in the Government of the United States, 
or in any department or officer thereof. 

[For other powers, see Article II, Section i ; Article III, Sections 2 and 
3 ; Article IV, Sections 1-3 ; and Article V.] 

Limitations on Powers Granted to the United States 
Slave trade. 

Sec. 9. I. The migration or importation of such persons as any 
of the States now existing shall think proper to admit, shall not be 



5i8 APPENDIX B 

prohibited by Congress prior to the year one thousand eight hun- 
dred and eight ; but a tax or duty may be imposed on such importa- 
tion, not exceeding ten dollars for each person. 

Writ of habeas corpus not to he suspended — Exception. 

2. The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when, in cases of rebellion or invasion, the public 
safety may require it. 

Ex post facto laws and hills of attainder prohihited. 

3. No bill of attainder or ex post facto law shall be passed. 

Direct taxes. 

4. No capitation or other direct tax shaU be laid, unless in pro- 
portion to the census or enumeration hereinbefore directed to be 
taken. 

Exports not to he taxed. 

5. No tax or duty shall be laid on articles exported from any State. 

No preference to he given to ports of any State — Interstate shipping. 

6. No preference shall be given, by any regulation of commerce 
or revenue, to the ports of one State over those of another ; nor shall 
vessels bound to or from one State be obliged to enter, clear, or pay 
duties in another. 

Money, how drawn from treasury — Financial statements to he puhlished. 

7. No money shall be drawn from the treasury, but in conse- 
quence of appropriations made by law ; and a regular statement and 
account of the receipts and expenditures of all public money shall 
be published from time to time. 

Titles of nobility not to he granted — Acceptance by government officers 
of favors from foreign powers. 

8. No title of nobility shall be granted by the United States ; and 
no person holding any office of profit or trust under them shall, with- 
out the consent of the Congress, accept of any present, emolument, 
office, or title, of any kind whatever, from any king, prince, or foreign 
state. 

Powers Prohibited to the States 

Limitations of powers of the several States. 

Sec. 10. I. No State shall enter into any treaty, alliance, or con- 
federation ; grant letters of marque and reprisal ; coin money ; emit 



CONSTITUTION OF THE UNITED STATES 519 

bills of credit; make anything but gold and silver coin a tender in 
payment of debts ; pass any bill of attainder, ex post facto law, or 
law impairing the obhgation of contracts, or grant any title of nobility. 

State imports and duties. 

2. No State shall, without the consent of the Congress, lay any 
impost or duties on imports or exports, except what may be abso- 
lutely necessary for executing its inspection laws ; and the net prod- 
uce of all duties and imposts, laid by any State on imports or ex- 
ports, shall be for the use of the treasury of the United States ; and 
all such laws shall be subject to the revision and control of the 
Congress. 

Further restrictions on powers of States. 

3. No State shall, without the consent of Congress, lay any duty 
of tonnage, keep troops or ships of war in time of peace, enter into 
any agreement or compact with another State or with a foreign 
power, or engage in war, unless actually invaded or in such im- 
minent danger as will not admit of delay. 

ARTICLE II 

Executive Department 

Executive power vested in President — Term of office. 

Section i . i . The executive power shall be vested in a President 
of the United States of America. He shall hold his office during the 
term of four years, and together with the Vice-President chosen for 
the same term, be elected as follows : 

Appointment and number of presidential electors. 

2. Each State shall appoint, in such manner as the Legislature 
thereof may direct, a number of Electors equal to the whole number 
of Senators and Representatives to which the State may be entitled 
in the Congress ; but no Senator or Representative, or person hold- 
ing an office of trust or profit under the United States, shall be ap- 
pointed an Elector. 

Mode of electing President and Vice-President. 

3. [The Electors shall meet in their respective States and vote, 
by ballot, for two persons, of whom one at least shall not be an 
inhabitant of the same state with themselves. And they shall make 
a list of all the persons voted for, and of the number of votes for 



520 APPENDIX B 

each; which list they shall sign and certify, and transmit, sealed, 
to the seat of the government of the United States, directed to the 
President of the Senate. The President of the Senate shall, in the 
presence of the Senate and House of Representatives, open all the 
certificates, and the votes shall then be coimted. The person having 
the greatest number of votes shall be the President, if such n\imber 
be a majority of the whole number of Electors appointed; and if 
there be more than one who have such majority, and have an equal 
number of votes, then the House of Representatives shaU immediately 
choose by baUot one of them for President ; and if no person have a 
majority, then from the five highest on the list, the said house shall, 
in like manner, choose the President. But in choosing the Presi- 
dent the vote shall be taken by States, the representation from each 
State having one vote ; a quorum for this purpose shall consist of a 
member or members from two thirds of the States, and a majority 
of all the States shall be necessary to a choice. In every case after 
the choice of the President, the person having the greatest number 
of votes of the Electors shall be the Vice-President. But if there 
should remain two or more who have equal votes, the Senate shall 
choose from them, by ballot, the Vice-President.] 

This clause has been superseded by the Twelfth Amendment to the 
Constitution. 

Time of choosing electors and casting electoral vote. 

4. The Congress may determine the time of choosing the Elec- 
tors, and the day on which they shall give their votes; which day 
shall be the same throughout the United States. 

Qualifications for the office of President. 

^. No person except a natural-bom citizen, or a citizen of the 
United States at the time of the adoption of this Constitution, shall 
be ehgible to the office of President; neither shall any person be 
eUgible to that office who shall not have attained the age of thirty- 
five years, and been fourteen years a resident within the United 
States. 

[See also Article II, Section i, and Fourteenth Amendment.] 

Filling vacancy in office of President. 

6. In case of the removal of the President from office, or of his 
death, resignation, or inabihty to discharge the powers and duties 
of the said office, the same shall devolve on the Vice-President, and 
the Congress may, by law, provide for the case of removal, death, 



CONSTITUTION OF THE UNITED STATES 521 

resignation, or inability, both of the President and Vice-President, 
declaring what officer shall then act as President, and such officer 
shall act accordingly, until the disabiHty is removed, or a President 
shall be elected. 

Note. — Agreeably with the powers conferred by Clause 6, Section i, 
Article II, of the Constitution, at its first session the Forty-ninth Congress 
in 1886 provided for the succession to the presidency in case of the removal, 
death, resignation, or inabiUty of the President and Vice-President by direct- 
ing that the office devolve first upon the Secretary of State, and in case of 
his inability, for any reason, to perform its duties, it should pass, successively, 
upon similar conditions, to the Secretary of the Treasury, Secretary of War, 
Attorney-general, Postmaster-general, Secretary of the Navy, and 
Secretary of the Interior. If, however, any one of these officers should 
be of foreign birth, or otherwise disqualified, the presidency passes to the 
next named in the list. 

Compensation of the President. 

7. The President shall, at stated times, receive for his services a 
compensation, which shall neither be increased nor diminished 
during the period for which he shall have been elected, and he shall 
not receive within that period any other emolument from the United 
States or any of them. 

Oath to he taken by the President. 

8. Before he enters on the execution of his office, he shall take the 
following oath or affirmation : "I do solemnly swear (or affirm) that 
I will faithfully execute the office of President of the United States, 
and will, to the best of my abihty, preserve, protect, and defend the 
Constitution of the United States." 



Powers of President 

Commander-in-chief — May grant reprieves and pardons. 

Sec. 2. I. The President shall be commander-in-chief of the 
Army and Navy of the United States, and of the militia of the several 
States when called into the actual service of the United States; he 
may require the opinion, in writing, of the principal officer in each 
of the executive departments, upon any subject relating to the duties 
of their respective offices, and he shall have power to grant reprieves 
and pardons for offenses against the United States, except in cases of 
impeachment. 



522 APPENDIX B 

President may, with concurrence of the senate, make treaties, appoint 
ambassadors, etc. — Appointment of inferior o fleers, authority of 
Congress over. 

2. He shall have power, by and with the advice and consent of 
the Senate, to make treaties, provided two thirds of the Senators 
present concur ; and he shall nominate, and, by and with the advice 
and consent of the Senate, shall appoint ambassadors, other public 
ministers and consuls, Judges of the Supreme Court, and aU other 
oflGicers of the United States whose appointments are not herein 
otherwise provided for and which shall be established by law; but 
the Congress may, by law, vest the appointment of such inferior 
officers as they think proper in the President alone, in the courts of 
law, or in the heads of departments. 

President may fill vacancies in office, during recess of senate. 

3. The President shall have power to fill up all vacancies that 
may happen during the recess of the Senate, by granting commis- 
sions, which shall expire at the end of their next session. 

Further Powers of President 

President to give advice to Congress — May convene or adjourn it on 
certain occasions — To receive ambassadors, etc. 

Sec. 3. He shaU, from time to time, give to the Congress infor- 
mation of the state of the Union, and recommend to their considera- 
tion such measures as he shall judge necessary and expedient; he 
may, on extraordinary occasions, convene both houses, or either of 
them, and, in case of disagreement between them with respect to the 
time of adjournment, he may adjourn them to such time as he shall 
think proper; he shall receive ambassadors and other public minis- 
ters ; he shall take care that the laws be faithfully executed, and shall 
commission aU the officers of the United States. 

[See also Article I, Section 5.] 

All civil officers removable by impeachment. 

Sec. 4. The President, Vice-President, and all civil officers of 
the United States shall be removed from office on impeachment for 
and conviction of treason, bribery, or other high crimes and mis- 
demeanors. 

[See also Article I, Section 5.] 



CONSTITUTION OF THE UNITED STATES 523 

ARTICLE III 
Judicial Department 

Judicial power, how vested — Terms of office and salary of judges. 

Section i. The judicial power of the United States shall be 
vested in one Supreme Court, and in such inferior courts as the Con- 
gress may from time to time ordain and establish. The Judges, both 
of the Supreme and inferior courts, shall hold their offices during 
good behavior, and shall, at stated times, receive for their services a 
compensation which shall not be diminished during their continu- 
ance in office. 

[See also Eleventh Amendment.] 

Jurisdiction of United States Courts 

Cases that may come before United States courts. 

Sec. 2. I. The judicial power shall extend to all cases, in law 
and equity, arising under this Constitution, the laws of the United 
States, and treaties made, or which shall be made, under their 
authority; to all cases affecting ambassadors, other public minis- 
ters, and consuls; to all cases of admiralty and maritime jurisdic- 
tion ; to controversies to which the United States shall be a party ; 
to controversies between two or more States; between a State and 
citizens of another State; between citizens of different States; 
between citizens of the same State claiming lands under grants of 
different States ; and between a State, or the citizens thereof, and 
foreign States, citizens or subjects. 

Original and appellate jurisdiction of Supreme Court. 

2. In all cases affecting ambassadors, other public ministers, and 
consuls, and those in which a State shall be a party, the Supreme 
Court shall have original jurisdiction. In all the other cases before 
mentioned the Supreme Court shall have appellate jurisdiction, both 
as to law and fact, with such exceptions and under such regulations 
as the Congress shall make. 

[See also Fifth, Sixth, Seventh, and Eighth Amendments.] 

3. The trial of all crimes, except in cases of impeachment, shall 
be by jury ; and such trial shall be held in the State where the said 
crimes shaU have been committed ; but when not committed within 



524 APPENDIX B 

any State, the trial shall be put at such place or places as the Con- 
gress may, by law, have directed. 

[See also Fifth, Sixth, Seventh, and Eighth Amendments.] 

Treason 
Treason defined. 

Sec. 3. I. Treason against the United States shall consist only 
in levying war against them, or in adhering to their enemies, giving 
them aid and comfort. 

Conviction. 

2. No person shaU be convicted of treason, unless on the testi- 
mony of two witnesses to the same overt act, or on confession in 
open court. 

Punishment for treason. 

3. The Congress shall have power to declare the punishment of 
treason ; but no attainder of treason shall work corruption of blood, 
or forfeiture, except during the life of the person attainted. 

ARTICLE IV 

The States and the Federal Government 

Each State to give full faith and credit to the public acts and records of 
other States. 
Section i. Full faith and credit shall be given in each State to 
the public acts, records, and judicial proceedings of every other 
State. And the Congress may, by general laws, prescribe the man- 
ner in which such acts, records, and proceedings shall be proved, 
and the effect thereof. 

[See also Fourteenth Amendment.] 

Interstate privileges of citizens. 

Sec. 2. I. The citizens of each State shall be entitled to aU the 
privileges and immunities of citizens in the several States. 

Extradition between the several States. 

2. A person charged in any State with treason, felony, or other 
crime, who shall flee from justice and be found in another State, 
shall, on demand of the executive authority of the State from which 



CONSTITUTION OF THE UNITED STATES 525 

he fled, be delivered up, to be removed to the State having jurisdic- 
tion of the crime. 

Persons held to labor or service in one State, fleeing to another, to he 
returned. 

3. No person held to service or labor in one State, under the laws 
thereof, escaping into another, shall, in consequence of any law or 
regulation therein, be discharged from such service or labor, but 
shall be delivered up on claim of the party to whom such service or 
labor may be due. 

Admission of new States. 

Sec. 3. I. New States may be admitted by the Congress into 
this Union ; but no new State shall be formed or erected within the 
jurisdiction of any other State; nor any State be formed by the 
junction of two or more States, or parts of States, without the con- 
sent of the Legislatures of the States concerned, as well as of Congress. 

Control of the property and territory of the Union. 

2. The Congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory or other property 
belonging to the United States; and nothing in this Constitution 
shall be so construed as to prejudice any claims of the United States, 
or of any particular State. 

Republican government guaranteed. ' 

Sec. 4. The United States shall guarantee to every State in this 
Union a republican form of government, and shall protect each of 
them against invasion ; and, on application of the Legislature, or of 
the Executive (when the Legislature can not be convened), against 
domestic violence. 

ARTICLE V 

Amendments 

Amendments, how proposed and adopted. 

Section i. The Congress, whenever two thirds of both houses 
shall deem it necessary, shall propose amendments to this Constitu- 
tion, or, on the application of the Legislatures of two thirds of the 
several States, shall call a convention for proposing amendments, 
which, in either case, shall be valid, to all intents and purposes, as 
part of this Constitution, when ratified by the Legislatures of three 



526 APPENDIX B 

fourths of the several States or by conventions in three fourths 
thereof, as the one or the other mode of ratification may be proposed 
by the Congress ; provided, that no amendment which may be made 
prior to the year one thousand eight hundred and eight shall, in any 
manner, affect the first and fourth clauses in the ninth section of the 
first article; and that no State, without its consent, shall be de- 
prived of its equal suffrage in the Senate, 

ARTICLE VI 

Promiscuous Provisions 

Debts contracted under the Confederation secured. 

Section i. i. All debts contracted and engagements entered 
into, before the adoption of this Constitution, shall be as valid 
against the United States, under this Constitution, as under the 
Confederation. 

[See also Fourteenth Amendment , Section 4.] 

Constitution, laws, and treaties of the United States to he supreme. 

2. This Constitution, and the laws of the Unrfed^'States which 
shall be made in pursuance thereof, and all treaties made, or which 
shall be made, under the authority of the United States, shall be the 
supreme law of the land; and the judges in every State shall be 
bound thereby, anything in the Constitution or laws of any State 
to the contrary notwithstanding: 

Who shall take constitutional oath — No religious test as to official 
qualification. 

3. The Senators and Representatives before mentioned, and the 
members of the several State Legislatures, and all executive and 
judicial officers, both of the United States and of the several States, 
shall be bound, by oath or affirmation, to support this Constitution ; 
but no religious test shall ever be required as a qualification to any 
o£&ce or public trust under the United States. 

ARTICLE VII 

Ratification or Constitution 

Section i. The ratification of the conventions of nine States 
shaU be sufficient for the establishment of this Constitution between 
the States so ratifying the same. 



CONSTITUTION OF THE UNITED STATES 527 



Done in convention, by the unanimous consent of the States 
present, the seventeenth day of September, in the year of our 
Lord one thousand seven hundred and eighty-seven, and of the 
independence of the United States of America the twelfth. In 
witness whereof, we have hereunto subscribed our names. 



NEW HAMPSHIRE 

John Langdon, 
Nicholas Oilman. 

MASSACHUSETTS 

Nathaniel Gorham, 
Rurus King. 

new jersey 

William Livingston, 
David Brearly, 
William Patterson, 
Jonathan Dayton. 

pennsylvania 

Benjamin Franklin, 
Thomas Mifflin, 
Robert Morris, 
George Clymer, 
Thomas Fitzsimons, 
Jared Ingersoll, 
James Wilson, 
Gouverneur Morris. 

south carolina 

John Rutledge, 
Charles C. Pinckney, 
Charles Pinckney, 
Pierce Butler. 



GEO. WASHINGTON, 

President, and Deputy from Virginia. 

delaware 
George Read, 
Gunning Bedford, Jr., 
John Dickinson, 
Richard Bassett, 
Jacob Broom. 

CONNECTICUT 

William Samuel Johnson, 
Roger Sherman. 

NEW YORK 

Alexander Hamilton. 

maryland 
James McHenry, 
Daniel of St. Th. Jenifer, 
Daniel Carroll. 

north carolina 
William Blount, 
Richard Dobbs Spaight, 
Hugh Williamson. 

virginia 
John Blair, 
James Madison, Jr. 

GEORGIA 

William Few, 
Abraham Baldwin. 



Attest: William Jackson, Secretary. 



528 APPENDIX B 

AMENDMENTS 
ARTICLE I 

Freedom of Religion, of Speech, of the Press, and Right of 

Petition 

Congress shall make no law respecting an establishment of re- 
ligion, or prohibiting the free exercise thereof, or abridging the free- 
dom of speech or of the press ; or the right of the people peaceably 
to assemble, and to petition the government for a redress of griev- 
ances. [Proposed September 25, lySg; in efed December 15, 1791.] 

ARTICLE II 

Right of People to Bear Arms not to be Infringed 

A well-regulated militia being necessary to the security of a free 
State, the right of the people to keep and bear arms shall not be 
infringed. [Id.] 

ARTICLE III 

Quartering of Troops 

No soldier shall, in time of peace, be quartered in any house with- 
out the consent of the owner ; nor in time of war, but in a manner 
to be prescribed by law. [Id.] 

ARTICLE IV 

Persons and Houses to be Secure from Unreasonable 
Searches and Seizures 

The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be 
violated, and no warrants shaU issue but upon probable cause, sup- 
ported by oath or affirmation, and particularly describing the place 
to be searched and the persons or things to be seized. [Id.] 

ARTICLE V 

Trials for Crimes — Just Compensation for Private Property 
Taken for Public Use 

No person shall be held to answer for a capital or otherwise in- 
famous crime, unless on a presentment or indictment of a grand 



CONSTITUTION OF THE UNITED STATES 529 

jury, except in cases arising in the land or naval forces, or in the 
militia, when in actual service in time of war or public danger ; nor 
shall any person be subject for the same offense to be twice put in 
jeopardy of life or limb; nor shall be compelled in any criminal 
case to be a witness against himself ; nor be deprived of life, liberty 
or property, without due process of law ; nor shall private property 
be taken for public use without just compensation. [Id.] 



ARTICLE VI 

Civil Rights in Trials for Crimes Enumerated 

In all criminal prosecutions the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the State and dis- 
trict wherein the crime shall have been committed, which district 
shall have been previously ascertained by law, and to be informed 
of the nature and cause of the accusation ; to be confronted with the 
witnesses against him; to have compulsory process for obtaining 
witnesses in his favor, and to have the assistance of counsel for his 
defense. [Id.] 

ARTICLE VII 
Civil Rights in Civil Suits 

In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved; 
and no fact, tried by a jury, shall be otherwise reexamined in any 
court of the United States than according to the rules of the com- 
mon law. [Id.] 

ARTICLE VIII 
Excessive Bail, Fines, and Punishments Prohibited 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. [Id.] 

ARTICLE IX 

Reserved Rights of the People 

The enymeration in the Constitution of certain rights shall not be 
construed to deny or disparage others retained by the people. [Id.] 



530 APPENDIX B 

ARTICLE X 

Powers not Delegated, Reserved to States and People 

Respectively 

The powers not delegated to the United States by the Constitu- 
tion, nor prohibited by it to the States, are reserved to the States, 
respectively, or to the people. [Id.] 

ARTICLE XI 

Judicial Power of United States not to Extend to Suits 

AGAINST A State 

The judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted against 
one of the United States by citizens of another State, or by citizens 
or subjects of any foreign State. [Proposed September 5, 1794; in 
efect January 8, 1798.] 

ARTICLE XII 

Election of President and Vice-President 

The Electors shall meet in their respective States, and vote by 
ballot for President and Vice-President, one of whom, at least, shall 
not be an inhabitant of the same State with themselves ; they shall 
name in their ballots the person voted for as President, and in dis- 
trict ballots the person voted for as Vice-President ; and they shall 
make distinct lists of all persons voted for as President, and of aU 
persons voted for as Vice-President, and of the number of votes for 
each, which lists they shall sign and certify, and transmit, sealed, 
to the seat of the government of the United States, directed to the 
President of the Senate. The President of the Senate shall, in the 
presence of the Senate and House of Representatives, open all the 
certificates, and the votes shall then be counted. The person having 
the greatest number of votes for President shall be the President, 
if such a number be a majority of the whole number of Electors ap- 
pointed ; and if no person have such majority, then from the per- 
sons having the highest numbers, not exceeding three, on the list 
of those voted for as President, the House of Representatives shall 
choose immediately, by ballot, the President. But in choosing the 
President, the votes shall be taken by States, the representation 



CONSTITUTION OF THE UNITED STATES 531 

from each State having one vote; a quorum for this purpose shall 
consist of a member or members from two thirds of the States, and 
a majority of all the States shall be necessary to a choice. And if 
the House of Representatives shall not choose a President, when- 
ever the right of choice shall devolve upon them, before the fourth 
day of March next following, then the Vice-President shall act as 
President, as in the case of the death or other constitutional dis- 
abihty of the President. The person having the greatest number of 
votes as Vice-President shall be the Vice-President, if such number 
be a majority of the whole number of Electors appointed; and if 
no person have a majority, then from the two highest numbers on 
the list the Senate shall choose the Vice-President; a quorum for 
the purpose shall consist of two thirds of the whole number of Sena- 
tors, and a majority of the whole number shall be necessary to a 
choice. But no person constitutionally ineligible to the office of 
President shall be eligible to that of Vice-President of the United 
States. [Proposed December 12, 1803; in efect September 25, 1804.] 

ARTICLE XIII 

Slavery Prohibited 

Section i. Neither slavery nor involuntary servitude, except 
as a punishment for crime whereof the party shall have been duly 
convicted, shall exist within the United States, or any place subject 
to their jurisdiction. 

Sec. 2. Congress shall have power to enforce this article by ap- 
propriate legislation. [Proposed February i, 1865; in efect Decem- 
ber 18, 186 j.] 

ARTICLE XIV 

Citizenship Defined — Privileges or Citizens 

Citizenship. 

Section i. All persons born or naturaUzed in the United States 
and subject to the jurisdiction thereof, are citizens of the United 
States and of the State wherein they reside. No State shall make or 
enforce any law which shall abridge the privileges or immunities of 
citizens of the United States ; nor shall any State deprive any per- 
son of life, liberty, or property, without due process of law, nor 
deny to any person within its jurisdiction the equal protection of 
the laws. 



532 APPENDIX B 

Apportionment of Representatives. 

Sec. 2. Representatives shall be apportioned among the several 
States, according to their respective numbers, counting the whole 
number of persons in each State, excluding Indians not taxed. But 
when the right to vote at any election for the choice of Electors for 
President and Vice-President of the United States, Representatives 
in Congress, the executive and judicial officers of a State, or the 
members of the Legislature thereof, is denied to any of the male 
inhabitants of such State, being twenty-one years of age and citizens 
of the United States, or in any way abridged, except for participa- 
tion in rebellion, or other crime, the basis of representation therein 
shall be reduced in the proportion which the number of such male 
citizens shall bear to the whole number of male citizens twenty- 
one years of age in such State. 

Disqualification for office — Removal of disability. 

Sec. 3. No person shall be a Senator or Representative in Con- 
gress, or Elector of President and Vice-President, or hold any office, 
civil or mihtary, under the United States, or under any State, who, 
having previously taken an oath as a member of Congress, or as an 
officer of the United States, or as a member of any State Legislature, 
or as an executive or judicial officer of any State, to support the 
Constitution of the United States, shaU have engaged in insurrec- 
tion or rebellion against the same, or given aid or comfort to the 
enemies thereof. But Congress may, by a vote of two thirds of 
each house, remove such disability. 

Public debt not to be questioned — Payment of debts and claims incurred 
in aid of rebellion forbidden. 
Sec. 4. The vahdity of the pubhc debt of the United States, 
authorized by law, including debts incurred for payment of pensions 
and bounties for services in suppressing insurrection or rebellion, 
shall not be questioned. But neither the United States nor any 
State shall assume or pay any debt or obligation incurred in aid of 
insurrection or rebellion against the United States, or any claim for 
the loss or emancipation of any slave; but all such debts, obliga- 
tions, and claims shall be held illegal and void. 

Power of Congress. 

Sec. 5. The Congress shall have power to enforce, by appro- 
priate legislation, the provisions of this article. [Proposed June 16, 
1866; in effect Jidy 28, 1868.] 



CONSTITUTION OF THE UNITED STATES 533 

ARTICLE XV 

Elective Franchise 

Right of certain citizens to vote, established. 

Section i. The right of citizens of the United States to vote 
shall not be denied or abridged by the United States, or by any 
State, on account of race, color, or previous condition of servitude. 

Power of Congress. 

Sec. 2. The Congress shall have power to enforce this article 
by appropriate legislation. [Proposed February 27, i86g; in ejffect 
March 30, 1870.] 

ARTICLE XVI 

The Congress shaU have power to lay and collect taxes on incomes, 
from whatever source derived, without apportionment among the 
several States and without regard to any census or enumeration. 

ARTICLE XVII 

The Senate of the United States shall be composed of two Sena- 
tors from each State, elected by the people thereof for six years, and 
each Senator shall have one vote. The Electors in each State shall 
have the qualifications requisite for Electors of the most numerous 
branch of the State Legislatures. 

When vacancies happen in the representation of any State in the 
Senate, the executive authority of such State shall issue writs of 
election to fill such vacancies : Provided, that the Legislature of any 
State may empower the executive thereof to make temporary ap- 
pointment until the people fill the vacancies by election as the Legis- 
lature may direct. 

This amendment shall not be considered as to affect the election 
or term of any Senator chosen before it becomes valid as part of the 
Constitution. 



INDEX 



INDEX 



Ability theory of taxation, 469. 
Adjutant-general, office of, in states, 

173. 
Agriculture, state commissioner of, 

172, 173; federal Department of, 

294-295. 
Alaska, territorial government of, 

310; schools provided for, 310, 

368. 
Albany Congress, 36. 
Alderman, office of, in English local 

government, 182. 
Alien and Sedition Acts, 53, 54. 
Amendments, of federal Constitution, 

5'^~53 ', of state constitutions, 108- 

109. 
Amusements, public, 340-350. 
Animal Industry, Bureau of, 294, 

375- 
Annapolis, naval academy at, 326, 

327- 

Annapolis convention of 1786, 41. 

Anti-Masonic party, 64. 

Anti-Nebraska Men, early name of 
Republican party, 71. 

Anti-trust legislation, 416-418. 

Appeal, right of, in colonial courts, 
IS, 16, 21. 

Appointment, President's power of, 
242, 243, 246. 

Appropriation bills, in the Senate 
and House, 483-484; need of 
budget for federal, 484-485 ; state 
practice similar to national in 
regard to, 485-486; power of 
governor over, 486; budget sys- 
tem in preparing state, 486-488; 
honesty and efficiency needed 
in carrying out, 488-489. 

Arbitration treaties, 325-326. 

Army, power of Congress to raise 
and support, 50; direction of, 
by War Department and General 
Staff, 290. 



Army war colleges, 328. 

Articles of Confederation, 38-39; 
text of, 501-510. 

Assembly, the, in colonial period, 
14, 16, 17-19; lower house called, 
in states, 30. 

Assessments, special, 478-479. 

Assessor, county, 208, 215. 

Associate justices of Supreme Court, 
282. 

Attorney-general, in state govern- 
ment, 1 71-17 2 ; in federal govern- 
ment, 291; assistant, 291. 

Auditing systems, state, 171, 489; 
county, 215. 

Australian ballot, introduction of, 
82 ; forms of, 83-84. 

Ballot, reform of the, 81-82; Aus- 
tralian, 82 • Massachusetts form 
of, 83 ; party-column form of, 
83-85 ; reason for adoption of 
non-partisan, 92-93 ; undemo- 
cratic character of long, 106-108; 
movement for short, 108. 

Bank checks, 401-402. 

Bank credits, 401. 

Bank notes, 397-399- 

Bank of United States, Hamilton's 
idea in creating, 47, 398, 404; 
destroyed by Jackson, 70. 

Bankruptcy, power of Congress over 
laws of, 50. 

Banks, commissioner of, 173 ; credit 
of, as money, 401 ; use of clearing- 
house by, 402 ; loan methods of, 
402 ; danger of inflation of credit 
of, 403; governmental regulation 
of, 403-404; central control of, 
404; federal control of, 405. 

Baths, pubUc, 349^3 5°- 

Benefit theory of taxation, 468-469. 

Bicameral legislatures, 122. 

Big stick, the, 251-252. 



537 



538 



INDEX 



Bills of Rights, of early state 
constitutions, 32; constitutional 
amendments known as, 51; limi- 
tations of, 129. 

Bills, state legislative, 133-150; 
federal, 262, 269-277; appropria- 
tion, 484-489. 

Biological Survey, Bureau of, 295. 

Blind, care of, by state, 355. 

Blue Sky Law, 411. 

Board, use of term, 173. 

Bonds, public debts paid by, 493, 
496. 

Bookkeeping and Warrants, division 
of, 289. 

Boston, mayor type of government 
in, 195-196. 

Bryan, William Jennings, 73, 76. 

Bubonic plague, 378 n. 

Budget system in government fi- 
nance, 484-488. 

Bureaus of executive departments : 
State, 288-289; Treasury, 289; 
War, 290; Navy, 293; Agricul- 
ture, 294-295 ; Commerce, 295, 
296 ; Labor, 297. 

Business tax, 477. 

Cabinet, the President's, 244-245 ; 
duties of members, 288-297. 

Calhoun, John C, as " states' rights" 
advocate, 54-55. 

Campaign, the political, 93 ; litera- 
ture for, 94 ; funds for, 95 ; ex- 
penditures for, 96-97 ; presidential, 

233- 

CathoUcs, colonial disfranchisement 
of, 19, 20. 

Caucus, colonial, 78; legislative, 78- 
79 ; congressional, 79, 267. 

Census, Bureau of the, 295, 378. 

Certificate of incorporation, 409. 

Charter colonies, government of, 16. 

Charter of Privileges, 15. 

Charters, trading company, 13 ; 
colonial, 13, 15, 16, 17 ; origin of 
city, 182 ; effect of Revolution on 
new, 183; system of special, for 
cities, 185 ; granted to cities by 
general law, 186-187; alternative, 
187; freeholder, 187-188; com- 



parison of, 188-189; present 
forms of, 192-198. 

Checks and balances, system of, 
33, 42; effects of, 43. 

Chemistry, Bureau of, 294. 

Chief justice of Supreme Court, 281, 
282. 

Chief of Staff, United States Army, 
290. 

Child-labor laws, necessity for, 3-4; 
power of Congress in making, 49 ; 
in force at present time, 437-439. 

Children's Bureau, 297. 

Chinese, exclusion of, 450. 

Circuit covu-t, in state judicial 
system, 154. 

Circuit courts of appeals, member- 
ship of, 282 ; jurisdiction of, 282- 
283; personnel of, 283. 

Cities, growth of, 179-180; place of, 
in antiquity, 181 ; superiority of, 
in modern times, 181-182 ; Eng- 
lish and colonial origins of govern- 
ment of, 182 ; system of special 
charters for, 185 ; general-law 
charters for, 186-187 ; alternative 
charters for, 187 ; freeholder char- 
ters for, 187-188; present forms 
of government for, 192, 198; 
administration of schools in, 362- 

363- 

City accounts, 489-490; need for 
uniform, 491. 

City budget, 487-488 

City council, effect of Revolution on 
the, 183 ; effect of democratic 
movement on the, 184. 

City debts, 494; for public utility 
enterprises, 495 ; Umits of, 495. 

City government, subservient to 
legislature, 128; in ancient and 
modern times, 181 ; EngKsh and 
colonial origins of, 182; effects of 
Revolution on, 183; fimctions 
of, 183, 455-466; effect of 
democratic movement on, 184; 
interference of state legislatures 
with, 185; beginning of reform, 
186; Galveston experiment, 191- 
194 ; commission form of, 192- 
195 ; Des Moines form of, 194- 



INDEX 



539 



195; mayor type of, 195-196; 
New York City plan of, 197 ; city 
manager plan of, 198; efficiency 
in, 490-491. 

City planning, 456-460. 

Civil law, functions of, 152. 

Civil procedure in cases in law and 
equity, 1 61-163. 

Civil service, under spoils system, 
300-301 ; reform of, 301 ; ex- 
aminations for, 302 ; appointments, 
303 ; tenure of office in, 303 ; non- 
partisanship in, 303 ; effect of com- 
petitive examination system in, 
304 ; criticism of system, 304-305 ; 
need of pensions in, 305 . 

Civil Service Commission, 297. 

Civil service laws, effectiveness of, 
in state service, 175-176. 

Claims, court of, 285-286. 

Clayton Bill, 417, 418. 

Clearing-house, institution of the, 
402. 

Coal lands, conservation of, 386-387. 

Coast and Geodetic Survey, 296. 

Codes of procedure in judicial sys- 
tems of states, 167-169. 

Colonial government in America, 
11-22. 

Colonies of United States, 307-317- 

Commerce, necessity for regulation 
of, after Revolution, 40 ; power of 
Congress to regulate, 48. 

Commerce, Department of, 295-296, 
417, 418. 

Commission, use of term, 173. 

Commissioners, state, elected, 172; 
appointed, 172-173; ex-officio, 

173- . , 

Commissioners of deeds, appomted 

by governor, 116. 

Commission form of government, 
191-195. 

Committees, state legislative, 135- 
136; work of, 136; hearings 
granted by, 136-137; secret ses- 
sions of, 137-138; power of ap- 
pointing, 139. 

Committee system, in national Sen- 
ate, 264; in House of Representa- 
tives, 269, 271, 272, 273-274. 



Comptroller, functions of state, 171. 
Comptroller of the Currency, 289. 
Compulsory education laws, 365. 
Congress of United States, specified 
and implied powers of, 46-47 ; 
financial powers of, 48 ; power of, 
to regulate commerce, 48-49; 
military and other powers of, 50; 
limitations on powers of, 50; 
power of President controlled by, 
245-246; decline of, as repre- 
senting people, 247-248; weak- 
ness of, 248; President's message 
to, 249; method of evading 
President's veto, 250; power of 
President over, 250-252 ; Presi- 
dent's patronage and, 251 ; defects 
of relation of President to, 252- 
253; remedy for defects, 253; 
form of legislature of, 255-226; 
powers of houses of, 256-257; 
relative position of houses of, 257- 
258 ; growth of houses, 258 ; effect 
of growth, 259 ; compensation of 
members, 260; privileges of mem- 
bers, 261 ; sessions of, 261 ; records 
of proceedings of, 262-263; per- 
sonnel and organization of houses 
of, 263-267; appropriations by, 
483. See House of Representa- 
tives and Senate. 

Congresses, pre-Revolutionary, 37. 

Congressional caucus, 78-79- 

Congressional Record, 262-263. 

Congressional townships, 221. 

Connecticut, colonial government of, 
16; as member of New England 
Confederation, 35. 

Constitutional Convention of 1787, 

41-43- _. , 

Constitution of United States, funda- 
mental characteristics of govern- 
ment created by, 42, 45 ; drafting 
and ratification of, 43 ; as supreme 
law, 45, 49, 160; class of society 
represented in, 68; text of, 511- 

533- 
Constitutions, state: adoption of 
early, 24-25 ; origin of written, 25- 
26; conservatism of early, 26; 
effect of democratic movement on, 



S40 



INDEX 



loi ; amendments to, common, 

108-109; relation to state judicial 

system, 159-160. 
Consular service, 325. 
Continental Congress, state constitu- 
tions established on advice of, 24 ; 

the first, 37 ; the second, 38-40. 
Convention system, rise of, 78-80; 

effect of, 80-81. See National 

convention. 
Copyrights, power of Congress to 

grant, 50. 
Coroner, office of, 214. 
Corporations, Bureau of, 417, 418. 
Corporations, regulation of, 52, 130, 

408-418. 
Council, the colonial, 14-19 ; city, 

183-184. 
County, the state and the, 216-217; 

school superintendents of, 361- 

362. 
County accounts, need for uniform, 

491. 
County attorney, functions of, 154- 

155- 

County board, types of, 21 0-21 1; 
misgovernment by, 211; powers 
of, 212, 215. 

County budget, 487-488. 

County courts, jurisdiction of, 154; 
functions of New England, 206; 
of Virginia, 206-207 ; of New York, 
207 ; of Pennsylvania, 208. 

Coimty government, early English, 
203 ; of New England, 206 ; of 
Virginia, 206-207; of New York, 
207; sources of, 210; functions of 
county board in, 210-212; officers 
of, 212-213, 214-217; reform of, 
213-214. 

Covmty soUcitor, 154-155. 

County treasurer, 215. 

Covirt of appeals in state judicial 
system, 155-156. 

Court of claims, 285-286. 

Court of common pleas, jurisdiction 
of, 154. 

Covirt of errors, 155-156. 

Courts, power of state, 152 ; justices', 
153; trial, 154; appellate, 155- 
156; power of, over other depart- 



ments of government, 160-161 ; 
effect of slowness of, 166-167; 
special, 168; in New England 
counties, 206; United States, 279- 
283; juvenile, 335; and labor 
unions, 435. 

Crime, primitive pimishment for, 
330; moral responsibility for, 
330-331; natural causes of, 331; 
modern theory of punishment for, 
332-335 ; relation of the poUce to, 
335-338. 

Criminal law, functions of, 152-153. 

Criminal procedure, 163. 

Crown colonies, 13-15. 

Currency. See Money. 

Customs duties, revenue from, 469- 
472. 

Dance halls, supervision of, 344-345. 

Dartmouth College Case, 410. 

Deaf and dumb, care of, by state, 

355- 
Debate, Umitation of, in House of 

Representatives, 275-276; on ap- 
propriation bills, 484. 
Debts, public, 492-496. 
Deeds, state commissioners of, 116. 
Delaware, colonial government of, 

1 5 ; state constitution adopted 

by, 25. 
Delegate convention, origin of, 79-80. 
Democratic party, evolution of, 69- 

70; principles of, 72-74; in 191 6, 

75-76. 
Departments, the executive, 287-297. 
Dependents, public and private 

relief for, 352-353 ; local relief for, 

353-354; medical rehef for, 354; 

state institutions for, 354-356; 

state supervision over care of, 356. 
Desert Land Act, 383. 
Des Moines, commission form of 

government in, 194-195. 
Dingley Tariff, 471. 
Diplomatic representatives, 323-324. 
Director of the Mint, 289. 
Direct primary, 86-87. 
District attorney, in state judicial 

system, 154-155, 164; in federal 

courts, 282, 



INDEX 



541 



District of Columbia, form of gov- 
ernment in, 316-317. 

District courts. United States, 282 ; 
jurisdiction of, 282-283 ; per- 
sonnel of, 283. 

District judges, salaries of, 282. 

Districts, legislative, 125-126. 

Divisions of State Department, 289. 

Education, state board of, 172; 
county board of, 215; United 
States Commissioner of, 294; be- 
ginning of our system of, 359; 
land grant aid to, 360; adminis- 
tration of rural, 215-216, 360- 
362, of city, 362-363, of state, 
363-364 ; support of, 364-365 ; 
compulsory, 365 ; opportunities for 
adult, 366; public libraries as 
method of, 366-367; provisions 
for higher, 367; United States 
Bureau of, 310, 368. 

Election laws, 82-88. 

Election machinery, 78-88. 

Electoral system, the, 227, 234. 

English law, inheritance of, 20-22. 

Engraving and Printing, Bureau of, 

289. 

Entomology, Bureau of, 295, 378. 

Equalization, board of, 172. 

Equity, courts of, 21-22 ; distinction 
between law and, 154 n. ; proce- 
dure in suits in, 161. 

Executive departments of federal 
government, 287-297. 

Ex-ofl&cio bodies, state, 173-174. 

Experiment Stations, office of, 295. 

Extradition, governor's duty in 
cases of, 115. 

Factory legislation, 437-438. 
Federal administration, organization 

of, 287-297. 
Federal analogy, the, 183. 
Federal courts. See United States 

courts. 
Federalist party, 69. 
Federal law, relation of state law to, 

280. 
Federal Reserve Act, 398-399, 405. 
Federal Reserve Board, 405-406. 
Federal Trade Commission Law, 418. 



Feeble-minded, care of, by state, 

354, ass- 
Fees, revenue from, 478. 
Financial powers of Congress, 48. 
Fire protection, municipal, 464-466; 

in national and state forests, 389- 

390- 
Fish and game commissioners, board 

of, 172. 
Fisheries, Bureau of, 295. 
Foreign Affairs Committee of Senate, 

246-247. 
Foreign commerce, power of Congress 

to regulate, 48. 
Foreign and Domestic Commerce, 

Bureau of, 296. 
Foreigners in America, 446. 
Foreign relations of United States, 

management of, 323-326. 
Forest conservation, 381, 388-389. 
Forestry, Bureau of, 388. 
Forest Service, 295, 388. 
Franchises, pubUc service, 420, 424- 

42s- 

Franking privileges, 260, 263. 

FrankUn, Benjamin, at Albany Con- 
gress, 36. 

"Freeman," meaning of term, in 
colonial period, 16. 

Free silver. Democratic party issue, 

73. 
Free trade, meaning of, 469; argu- 
ments for and against, 470. 

Galveston, commission form of gov- 
ernment in, 1 9 1- 1 94. 

Gambling, restriction of, 343-344- 

Garbage and refuse disposal, mu- 
nicipal, 464. 

General Land Office, 293. 

General property tax, 474 ; criticism 

of, 475- 
Geological Survey, duties of Director 

of, 293-294. 
Georgia, colonial government of, 

13-15; state constitution adopted 

by, 25. 
Gerrymanders, 125-126. 
Good Roads, Office of, 295. 
Government, functions of, 1-6, 321; 

reasons for English traditions in 



542 



INDEX 



American, 11-12. See City gov- 
ernment and County government. 

Government Printing Office, 297. 

Governor, in colonial period, 13-19, 
29 ; limited authority of, under 
early state constitutions, 30-31 ; 
growth of power of, 112 ; adminis- 
tration embarrassed by elective 
state officers, 11 2-1 13; extent of 
appointive power, 113; influence 
of, over state administration, 114; 
mihtary power of, 114; power of 
pardon, 114-115 ; duties of, in case 
of extradition, 115; miscellaneous 
duties, 116; demands on time of, 
116; power and use of veto by, 
117-118; importance of messages 
of, 118; control of legislature by, 
118-119; as sole representative of 
state, 119-120; summing up of 
powers of, 120; action of, on re- 
ceiving legislative bill, 142-143 ; 
officers appointed by, 172-173; 
power of, to veto appropriation 
bills, 486. 

Grand jury, in state judicial system, 
164. 

Greenback party, 64. 

Guam, government of, 316. 

Hamilton, Alexander, theory of 
government represented by, 47, 
68-69. 

Hartford Convention, 54. 

Hawaii, territorial government of, 
309-310. 

Health, county board of, 216; pres- 
ervation of public, as a function 
of government, 370 fi. ; state 
boards of, 378-379; local boards 
of, 379- 

Health officer, county, 216. 

Hindus, exclusion of, 450-451. 

Homestead laws, 383. 

House of representatives, in state 
legislative systems, 30, 1 22-131. 

House of Representatives, national, 
42, 235-236, 255 ff. ; power of, 
256 ; superiority of Senate over, 
257-258; growth of, 258-259; 
seating arrangements in hall of. 



259-260; compensation of mem- 
bers, 260; privileges of members, 
261 ; personnel of, 266 ; organiza- 
tion of, 267 ; importance of com- 
mittee system in, 269-275 ; cal- 
endars of, 272 ; morning hour in, 
273 ; methods of voting, 275 ; 
limitation of debate, 275-276; 
appropriation bills in, 484. 

Immigration, effect of, on municipal 
government, 184 ; problem of, 445 ; 
volume of, 445 ; races in American, 
446 ; congestion of, 447 ; distri- 
bution of immigrants, 447 ; legis- 
lation concerning, 448-449 ; Orien- 
tal exclusion, 449-45 1 ; proposed 
restriction of, 452; future, 453- 

454- 

Immigration Bureau, 297. 

Immigration laws, 448 ; present 
status of, 449 ; affecting Orientals, 
450. 

Impeachment of President and other 
officers, 237-238. 

Implied powers of Congress, doctrine 
of, 47. 

Income tax, power of Congress to use, 
as source of revenue, 48 ; Constitu- 
tion and, 472-473 ; present, 473 n. 

Incorporation, certificate of, 409 ; 
development of laws of, 410-41 1. 

Indian Affairs, Commissioner of, 294. 

Indians, commerce with, regulated 
by Congress, 48 ; schools provided 
for, 368. 

Industrial conciUation, 436-437. 

Inheritance tax, 476-477. 

Initiative, the, as a democratic move- 
ment, 109; use and abuse of, 148- 
150; effect of, on commission 
government, 195, 199 n. 

Insane, care of, by state, 354-355- 

Institutions, state, for relief of poor, 
173, 354-356. 

Insular Affairs, Bureau of, 290-316. 

Insurance commissioner, office of, in 
states, 172, 173. 

Interior, Department of the, 293-294. 

Internal Revenue, Commissioner of, 
289; taxes, 472. 



INDEX 



543 



International law, 325-326. 

International relations of United 
States, development of, 321-323. 

Interstate commerce, power of Con- 
gress to regulate, 48 ; development 
of, 49. 

Interstate Commerce Act, 423. 

Interstate Commerce Commission, 
297,422-423. 

Irrigation projects, 383, 384, 385. 

Jackson, Andrew, as leader of demo- 
cratic movement, 70. 

Jails, bad features of, 332. 

Japanese, exclusion of, 450. 

Jefferson, Thomas, principles of 
government represented by, 47, 68- 

69. 

Jews, colonial disfranchisement of, 
19, 20. 

Judges, federal : authority given to, 
by Constitution, 42 ; courts pre- 
sided over by, 281-282. 

Judges, state : methods of selection 
of, 156; tenure of ofi&ce and 
salaries of, 157 ; character of, 158 ; 
effect of introduction of recall of, 
158-160; law's delays frequently 
due to, 166-167. 

Judicial procedure, colonial system 
of, 22. 

Judiciary, power of, over government 
departments, 1 60-1 61. 

Judiciary Act, 45-46. 

Jurors, drawing of, 161-162, 165. 

Jury, grand, 164. 

Jury trial, privilege of, in civil and 
equity cases, 154. 

Justice, Department of, 291. 

Justices' courts, 153. 

Justices of the peace, 153, 203. 

Juvenile courts, 168, 335. 

Kansas-Nebraska Bill, 71. 
Know-nothing party, 64. 

Labor, Department of, 297. 

Labor problem, the, 432 ; trade 
unions and, 432-434; employers' 
attitude toward, 434-435 ; the law 
and, 435 ; industrial conciliation 



of, 436-437 ; effect of factory legis- 
lation on, 437-438 ; effect of child- 
labor legislation on, 438-439; 
minimum wage and, 439; work- 
men's compensation and, 440-441 ; 
Socialism and, 441 ; SyndicaUsm 
and, 442 ; studies of, 442-443. 

Labor Statistics, Bureau of, 297, 
442. 

Land grant aid to education, 360. 

Land Ordinance of 1785, 382. 

Latin America, responsibility of 
United States toward, 322-323. 

Law, American inheritance of English 
common, 20-22; functions of 
civil and criminal, 152-153; pro- 
cedure in suits, 1 61-166; delays 
of the, 166-167 ; simplification 
of codes, 167-168. 

Laws, colonial, subject to king's ap- 
proval, 14-15 ; power of legislature 
relative to, 128 ; process of making 
state, 133-150; making of federal, 
269-277. 

Legislative reference bureaus, 134. 

Legislature, state : colonial origins of, 
14, 16 ; change in form and power, 
29, 30; bicameral form of, 122; 
division of powers of the two 
houses, 122-123; salaries of mem- 
bers, 123; sessions, 123-125; 
apportionment of legislative dis- 
tricts, 125-126; personnel of 
memb ers, 126-127; lawmaking 
powers of, 127-131; process of 
lawmaking by, 133-150; inter- 
ference of, with city government, 
185. 

Library of Congress, 298-299. 

Lieutenant-governor, duties of, 170- 

171- 
Life-saving Station Service, 289. 
Lighthouses, Bureau of, 296. 
Liquor licenses, 342-343 ; revenue 

from, 477-478. 
Liquor trafi&c, 340; restriction of, 

341-343. 
Lobby, in state legislature, 146. 
Local option, 341-342. 
Lockport, N. Y., plan of government 

for, 198. 



544 



INDEX 



Long ballot, 106-107 ; undemocratic 
character of, 107 ; in county elec- 
tions, 213. 

McCuUoch vs. Maryland, case of, 47. 

Marshal, United States, ofl&ce of, 282. 

Martial law, 328-329. 

Maryland, colonial government of, 
IS ; state constitution adopted 
by, 25. 

Massachusetts, colonial government 
of, 16 ; provisional government of, 
24 ; state constitution adopted by, 
25 ; as member of New England 
Confederation, 35. 

Massachusetts form of Australian 
ballot, 83. 

Mayor, ofl&ce of, 182, 183. 

Mayor type of city government, 195- 
196. 

Medical relief for dependents, 354. 

Military education, 326-327. 

Military justice, administration of, 
328. 

Military power of Congress, 50. 

Militia, governor's control over, 114. 

Milk, inspection of, 374-376. 

Minimum wage, 439. 

Mint, Director of the, 289. 

Money, as medium of exchange, 391- 
392 ; primitive, 392 ; relation be- 
tween value of, and prices, 393 ; 
early paper, 394; power to coin, 
395 ; ratio of silver, to gold, 395 ; 
coins in use, 396 ; government 
paper, 396-397 ; bank notes as, 
3Q7. 3Q8; dangers of government 
paper, 399-400; cheap vs. sound, 
400-401 ; bank credits as, 401 . 

Monopolies, corporations and, 412- 
413; limitations of, 414 ; methods 
of, 414-415 ; forms of organiza- 
tion of, 415-416. 

Monroe Doctrine, 322-323. 

Moving-picture shows, supervision 
of,34S-346. 

Municipal functions, 183, 455-466. 

Municipal government. See City 
government. 

Municipal public utilities, franchises 
granted to, 424-425 ; regulation 



of, 425-426; public ownership of, 

426-430. 

National banks, rules governing, 403- 
404. 

National Civic Federation, 429. 

National committee in party organi- 
zation, 89-90. 

National conventions, rise of, 79-80; 
effect of system, 80-81 ; choice 
of delegates to, 228-229; meeting 
of, 229-230; reports of committees 
at, 230-231; nomination of Presi- 
dent at, 231-232. 

NationaUst theory of the Union, 55- 
56. 

National Republican party, forma- 
tion of, 70. 

Natural gas, conservation of, 388. 

Naturalization, power of Congress 
regarding, 50; requirements for, 
104-106. 

Naturalization Bureau, 297. 

Naval education, 326, 327-328. 

Naval war college, 328. 

Navigation, Bureau of, 296. 

Navy, power of Congress to provide 
and maintain, 50. 

Navy Department, 292-293. 

New England, township and county 
government in, 204-206, 217- 
220. 

New England Confederation, for- 
mation of, 35-36. 

New Hampshire, colonial govern- 
ment of, 13-15; provisional 
government of, after Revolution, 
24; state constitution adopted 
by, 25. 

New Haven, as member of New Eng- 
land Confederation, 35. 

New Jersey, colonial government of, 
13-15 ; state constitution adopted 
by, 25. 

New York, colonial government of, 
i3~is; state constitution adopted 
by, 25 ; early local government in, 
207-208. 

New York, City, government of, 
197; water-supply system of, 455. 

Nomination machinery, 78-81. 



INDEX 



545 



Non-partisan ballot, reason for 
adoption of, 92-93. 

North Carolina, colonial govern- 
ment of, 13-15. 

Northwest Ordinance of 1787, pro- 
visions of, 309. 

Notaries public, appointed by gov- 
ernor, 116. 

Nullification, doctrine of, 53-54. 

OflSce-holding, property qualifica- 
tions for, under early state con- 
stitutions, 28-29; effect of spoils 
system on, 81 ; civil-service re- 
form applied to, 301-305. 

Oil fields, conservation of, 387. 

Orphans' courts, 168. 

Pago Pago, government of, 316. 
Panama Canal Zone, government of, 

290, 316. 
Pardon, governor's power of, 114- 

iiS- 
Parish, in English local government, 

203-204; in Virginia, 207. 
Parks, amusement, 346; national 

and state, 347 ; municipal, 347- 

348. 
Parties, political : place of, in modern 

government, 61 ff.; necessity for, 

in a democracy, 61-62 ; evolution 

of two-party system, 62-63 ; ex- 
ceptions to two-party rule, 64 ; 

citizen's obligation toward, 65 ; 

history of, in United States, 67-76 ; 

the future of, 76. 
Party-column ballot, 83-85. 
Party funds, source and expenditxire 

of, 95-97- 
Party organization, 89-91 ; facility 

of, 91 ; political machines in, 91- 

93- 
Patents, power of Congress to grant, 

50; Commissioner of, 294. 
Payne- Aldrich Tariff, 471. 
Penitentiaries, administration of , 291, 

332-333- 
Pennsylvania, colonial government 

of, 15; state constitution adopted 

by, 25 ; early local government in, 

208. 



Pensions, need of, in civil service, 305. 

Philadelphia, city plan of, 456-457. 

Philippine Islands, government of, 
290, 312-316. 

Plant Industry, Bureau of, 295. 

Playgrounds, municipal, 348. 

Plymouth, as member of New Eng- 
land Confederation, 35. 

Pocket veto, governor's use of, 143. 

Police commissioner, office of, 184, 
336. 

Police courts, 153. 

Police force in cities, 335-338. 

Political campaigns, 93-97, 233. 

Political machines, activities of, 91— 
93- 

Poll tax, 477. 

Poor relief, local, 353-354; state, 
354-356- 

Populist party, 64. 

Porto Rico, government of, 290, 
310-311, 316. 

Postmaster-general, duties of, 292. 

Post Office Department, 292. 

Post offices, power of Congress to 
establish, 50. 

Potomac, dispute over navigation 
of, 40-41. 

Preemption Law, 382. 

Preparedness, as a political issue, 76 ; 
plans for, 326. 

President of United States, possible 
origin of method of electing, 30; 
authority given to, by Constitu- 
tion, 42 ; method of election, 227 ; 
method of nomination, 228-232; 
campaign for, 233 ; election by 
House of Representatives, 235- 
236; inauguration of, 236; pro- 
visions for successor to, 236-237 ; 
provisions for impeachment of, 
237 ; term of office of, 238 ; eligi- 
bility for office of, 239-240; 
powers of, 242-243 ; compensa- 
tion of, 243 ; executive power of, 
243-244 ; Cabinet of, 244-245 ; 
limitations on executive power of, 
245-246; Senate's action on ap- 
pointments of, 246; Senate and, 
in foreign affairs, 246-247 ; as 
representative of the people, 247- 



546 



INDEX 



249; message of, to Congress, 
249; power of veto of, 249-250, 
251; power of, over Congress, 
250-252; Congress and patronage 
of, 251; defects of relation of 
Congress to, 252-253; remedy for 
defects, 253; relations of, with 
Senate, 256-257 ; power of, over 
foreign relations, 323. 

Presidential campaigns, 93-97, 233. 

Primary reform, 85-88. 

Printing, Joint Committee on, 297. 

Prisons, problems of, 333-334- 

Privy Council, right of appeal to, in 
colonial courts, 15, 16, 21. 

Probate courts, 168. 

Probation system, 334-335- 

Progressive party, 74, 75. 

Prohibition movement, 341-342. 

Prohibition party, 64. 

Property qualifications for voting 
and ofiice-holding, 20, 28-29; 
abolition of, loi. 

Property taxation, 474-475. 

Proprietary colonies, 15. 

Prosecuting attorney, functions of, 

154-155- 
Publications, Division of, 295. 
Public baths, 349-350. 
Public debts, of governments, 492- 

493 ; payable by bonds, 493 ; 

of states, 494 ; of cities, 494-495 ; 

repayment of, 496. 
Public domain of United States, ori- 
gin of, 382 ; disposal of, 383-385- 
Public Health Service, 290, 377. 
Public instruction, superintendent 

of, 172. 
PubUc Printer, office of, 297. 
PubHc prosecutors, 22. 
Public utilities, regulation of, 421- 

424, 425 ; municipal ownership of, 

426-430; revenue from, 479. 
Purchasing agents, state and local, 

492. 
Pure Food and Drugs Act, 376. 
Pure food laws, power of Congress 

concerning, 49. 

Quakers, disfranchisement of, in 
colonial period, 19, 20. 



Races represented in American immi- 
gration, 446. 

Railroad commissions, state, 422; 
Interstate Commerce Commission, 
422-423. , 

Railroads, power of Congress to regu- 
late rates on, 49; public control 
of, 420-424. 

Recall, the, log-iio; of judges, 158- 
160; used in connection with 
commission form of government, 
195, 199 n. 

Reclamation work of federal govern- 
ment, 294-383. 

Recreation centers, municipal, 349. 

Referendum, the, 109, 148-149; 
used in connection with commis- 
sion form of government, 195, 199 n. 

Reformatories, 334. 

Regents of university, state board of, 
172. 

Register of deeds, county, 216. 

Register of the Treasury, 289. 

Registration, requirements for, be- 
fore voting, 85. 

Religious qualifications for voting 
and office-holding under early 
state constitutions, 28-29. 

Representatives. See House of Rep- 
resentatives. 

Republican party, evolution of, 69, 
70, 72; first national convention 
of, 71; principles of, 72; in 191 6, 
75-76. 

Responsible ministry form of govern- 
ment, 27-28. 

Revenue, power of Congress to raise, 
48; sources of, 468-479. 

Revolution, American, of 1776, not 
a radically democratic movement, 
26 ; conservative reaction from 
democracy following, 33, 40; in- 
fluence of, on city government, 183. 

Rhode Island, colonial government 
of, 16. 

River and harbor improvement, 290, 

Roosevelt, Theodore, 73, 75, 160, 247. 

Rules Committee, power given to, in 
New York assembly, 141 ; im- 
portance of, in national House of 
Representatives, 270-272. 



INDEX 



547 



Sanitation, triumphs of, 371-372. 

Schools, administration of rural, 215- 
216, 360-361; covmty superin- 
tendents of, 361-362 ; administra- 
tion of city, 362-363 ; state 
administration of, 363-365 ; sup- 
port of, 364-365. See also Educa- 
tion. 

Secretaries at head of various execu- 
tive departments, 287-297. 

Secret Service of United States, 289. 

Selectmen, board of, 205, 219. 

Senate, in state legislative system, 
30, 122, 126-127. 

Senate, United States: authority 
given to, by Constitution, 42 ; 
election of Vice-President by, 235 ; 
action of, on appointments, 246 ; 
the President and, in foreign 
affairs, 246-247 ; form of election 
to, 255-256; power of, 256; re- 
lations of the President with, 256- 
257 ; superiority of, to House of 
Representatives, 257-258; growth 
of, 258; compensation of members, 
260; privileges of, 260-261; per- 
sonnel of, 263-264; organization 
of, 264; debate in, 265; appro- 
priation bills in, 484. 

Senate chamber, 260. 

Senatorial courtesy, 246. 

Sergeant-at-arms, ofl&ce of, in state 
legislature, 146. 

Sewage disposal, problem of, 462-464. 

Sewer commissioner, office of, 184. 

Sheriff, duties of county, 154, 214. 

Sherman Anti-Trust Act, 416. 

Short-ballot movement, 108. 

Single tax, theory of the, 480-481. 

Slavery, constitutional amendment 
forbidding, 53; rise of issue, 71. 

Smithsonian Institution, 297-298. 

Socialism and the labor problem, 441. 

Socialist party, principles of, 75. 

Soils, Bureau of, 295. 

Solicitor-general, duties of, 291. 

South Carolina, colonial govern- 
ment of, 13-15; provisional 
government of, at outbreak of 
Revolution, 24 ; state constitu- 
tion adopted by, 25. 



Speaker, office of, in state house of 
representatives, 139; in national 
House of Representatives, 270, 
271-272. 

Special legislation, restrictiori of, 131. 

Spoils system, 81. 

Stamp Act Congress, 37. 

Standards, Bureau of, 296. 

State, Department of, 288, 289. 

State constitutions, adoption of, 24- 
25; conservatism of, 26; religious 
qualifications in, 28; property 
qualifications in, 28-29 ; bills 
of rights stated in, 32; separation 
of powers expressed in, 32. 

State finance, budget for, 486-487 ; 
need for honest and efficient ad- 
ministration of, 488-489 ; auditing 
systems for, 489. 

State government, 26-33, loi ff- 

State institutions, boards of, 173; 
for relief of poor, 354-356. 

State law, relation of federal law to, 
280. 

State militia, power of Congress over, 
50. 

State officers, elective, 170-172; 
appointive, 172-176. 

States' rights theory of Constitution, 

53-55- 

Statistical Abstract, publication of, 
296. 

Statistics, Bureau of, 295. 

Steamboat Inspection Service, 296. 

Stock issues, 410-41 1. 

Street commissioner, office of, 184. 

Streets, city, paving, 461 ; watering 
and cleaning, 461-462 ; lighting, 
462. 

Subpoena, a, 165. 

Suffrage, colonial, 19; early demo- 
cratic changes in, 28; constitu- 
tional amendment providing right 
of, 53 ; movement introducing 
universal white male, 69 ; extension 
of, 101-102 ; tests for right of, 
101-103 ; granted to women, 102 ; 
the negro and, 103 ; United States 
Constitution and, 103-104; natu- 
ralization as a requirement for, 
104-106; limitations of, 106; 



548 



INDEX 



eflFect of widening of, on municipal 
affairs, 184; right of, in Hawaii, 
310, in Alaska, 310, in Porto Rico, 
■311, in Philippines, 313-314; 
reason for denial of, in District of 
Columbia, 317. 

Summons, a, 162. 

Superior court, jurisdiction of, 154. 

Supervisors, board of, in local govern- 
ment, 208. 

Supreme Court of United States, 
power of, 56, 280 ; membership of, 
and salaries, 281-282 ; jurisdiction 
of, 282-283 ; personnel of, 283- 
284; Constitution construed by, 
284-285. 

Surrogates' courts, 168. 

Surveyor-general, office of, 172. 

Syndicalism, 442. 

Taft, William Howard, 230, 233, 243. 

Tariff, protective, 70; arguments 
for and against, 469-470; un- 
scientific character of, 471. 

Tariff duties, ad valorem and specific, 
471. 

Taxation, power of Congress over 
direct, 47-48; in counties, 215; in 
towns, 218; benefit and ability 
theories of, 468-469 ; varieties of, 
for revenue, 469-480; separation 
of state and local, 480. 

Tenement houses, sanitary reform in, 
459 ; model, 460. 

Territories, power of United States 
to acquire and govern, 307-308; 
government of, 308-317. 

Textbooks, state adoption and supply 
of, 36s. 

Theaters, governmental supervision 
of, 345-346. 

Town meetings, 205, 208, 218. 

Town officers, 219-220, 222, 223. 

Towns, government of, 217-223. 

Townships, congressional, 221. 

Trade unions, organization of, 432- 
433 ; methods of, 433-434. 

Trading company charters, 12-13, 16. 

Transportation, advantages of low 
rate of, in cities, 459-460. 

Treasury Department, 289-290. 



Treaty-making power, the, 246-247, 
256-257. 

Trial courts, system of, 154-155. 

Trust problem, the, 411-418. 

Tuberculosis, fight against, 376-377. 

Two-party system, 62-63 ; excep- 
tions to rule, 64. 

Unemployment, problem of, 356- 

357; remedies suggested, 357. 
Union, theories of the federal, 45-56. 
United States courts, 279-283. 

Vaccination, as a means of protecting 
public health, 372-373. 

Veto, governor's power and use of, 
117, 486; President's power of, 
249-250, 251. 

Vice, induced by leisure, 340; re- 
sponsibilities of society and the 
government in regard to, 340-346. 

Vice-President, nomination of, 232; 
election of, 234; inauguration, 
236; as successor to President, 
236; Senate presided over by, 
264. 

Virginia, colonial government of, 13- 
1 5 ; government after outbreak 
of Revolution, 24; state constitu- 
tion adopted by, 25 ; early local 
government in, 206-207. 

Virginia and Kentucky Resolutions, 

53-54- 
Voting, registration required before, 
85. See Ballot. 

War, power of Congress to declare, 

50. 
War colleges, 328. 
War Department, 290; powers of, in 

Alaska, 310. 
Washington, D.C., city plan of, 458. 
Washington, George, inauguration of, 

43-44 ; Federalist administration 

of, 68-69. 
Water supply, municipal, 455-456. 
Ways and Means Committee, 267, 

269, 271, 272. 
Weather Bureau, 295. 
Webster, Daniel, as advocate of 

nationalist theory of the union, 55. 



INDEX 



549 



West Point, military academy at, 
326-327. 

Whig Party, formation of, 70. 

White House Conference on conser- 
vation, 381. - 

Wilson, Woodrow, policies of, 73, 76 ; 
trust legislation recommended by, 
417. 



Woman suffrage, 102; states which 

have granted, 102 n. 
Women, laws limiting hours of labor 

of, 4, 437-438. 
Workmen's compensation laws, 440- 

441. 

Yellow fever, extirpation of, 371-372. 



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